United States District Court, D. Nevada
DIMITRITZA H. TOROMANOVA, Plaintiff,
FIRST AMERICAN TRUSTEE SERVICING SOLUTIONS LLC, and RUSHMORE LOAN MANAGEMENT SERVICES LLC, Defendants
ORDER (1) GRANTING IN PART DEFENDANT'S MOTION TO
DISMISS COMPLAINT AND (2) DENYING DEFENDANT'S MOTION TO
EXPUNGE LIS PENDENS [ECF NOS. 19, 29]
P. GORDON, UNITED STATES DISTRICT JUDGE
Dimitritza H. Toromanova sues defendants First American
Trustee Servicing Solutions LLC (FATSS) and Rushmore Loan
Management Services LLC (Rushmore) claiming that they
improperly foreclosed on her property at 1706 Cordoba Lane in
Las Vegas. ECF No. 1. Rushmore moves to dismiss the complaint
and expunge the lis pendens Toromanova recorded.
claims of negligence, fraud, and violations of federal and
Nevada statutes either fail as a matter of law or do not meet
the pleading standards of the Federal Rules of Civil
Procedure. I therefore grant Rushmore's motion to dismiss
those claims. However, Toromanova's claim for declaratory
relief can be a stand-alone cause of action and she does not
make a request for injunctive relief, so I deny
Rushmore's motions to dismiss on those grounds. Because I
am not dismissing Toromanova's claim for declaratory
relief and I am allowing her to amend her dismissed claims, I
deny Rushmore's motion to expunge the lis pendens.
August 7, 2003, Toromanova took a loan from Lehman Brothers
Bank FSB. ECF No. 19-1. The loan was secured by a deed of
trust on property at 1706 Cordoba Lane in Las Vegas. ECF No.
20-1. The deed of trust was later assigned to U.S. Bank RMAC
Trust Series 2016-CTT. ECF No. 20-2. FATSS is currently the
trustee of the deed of trust, and Rushmore is the servicer of
the loan. On August 6, 2018, a notice of trustee's sale
was recorded against the property setting the sale for August
27, 2018. ECF No. 19 at 3. Toromanova subsequently
filed the present complaint and recorded a lis pendens
against the property. ECF Nos. 1, 7. Just prior to the
trustee sale, Toromanova filed for Chapter 13 bankruptcy. ECF
Judge Ferenbach granted Rushmore's motion to strike
Toromanova's first amended complaint. ECF No. 53.
Consequentially, the operative complaint is Toromanova's
original complaint. ECF No. 1. In that complaint, Toromanova
names two defendants, Rushmore and FATSS, but I recently
granted nonmonetary status to FATSS.
complaint is not clear. She broadly alleges that the
defendants have made “aggressive bad faith and
fraudulent claims” against her property, including the
specific allegations that they conducted a foreclosure sale
without standing and forged her signature on the recorded
deed of trust. ECF No. 1 at 2. In making these allegations,
Toromanova seems to be asserting claims for negligence;
fraud; and violations of Nevada's “Deceptive
Practices Act” (presumably Nevada's Deceptive Trade
Practices Act, Nevada Revised Statutes §§
598.0903-598.0999), Nevada's “Negotiable
Instruments Law” (presumably Nevada Revised Statutes
§§ 104.101-104.3605), and the federal Fair Debt
Collections Practices Act (15 U.S.C.A. § 1692).
Id. at 2-3. Toromanova also seeks declaratory relief
under Nevada Revised Statutes § 40.010 to determine who
are the real parties in interest to the note and deed of
trust. Id. at 3-4.
now moves to dismiss Toromanova's complaint with
prejudice and to expunge the lis pendens.
REQUEST FOR JUDICIAL NOTICE
support its motion to dismiss, Rushmore requested I take
judicial notice of the following documents: the deed of trust
(ECF No. 20-1), the assignment of deed of trust (ECF No.
20-2), the notice of trustee's sale (ECF No. 20-3), and
the lis pendens (ECF No. 20-4). Toromanova objects to this
request, arguing that the documents are subject to reasonable
dispute and are unauthenticated. ECF Nos. 23; 26 at 5-7.
Rushmore replies that because the documents are publicly
recorded in the official records of the Clark County
Recorder's Office, they are not subject to reasonable
dispute. ECF No. 25.
general rule, “a district court may not consider any
material beyond the pleadings in ruling on a Rule 12(b)(6)
motion.” Lee v. City of Los Angeles, 250 F.3d
668, 688 (9th Cir. 2001) (quotations omitted). However, under
Federal Rule of Evidence 201(b)(2), I can take judicial
notice of “a fact that is not subject to reasonable
dispute because it: . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” This includes matters of public record.
See Mack v. S. Bay Beer Distributors, Inc., 798 F.2d
1279, 1282 (9th Cir. 1986); Interstate Nat. Gas Co. v. S.
California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953).
four documents Rushmore presents are matters of public
record, so Rushmore's request for judicial notice is
granted. I take judicial notice that the deed of trust, the
assignment of the deed of trust, the notice of trustee's
sale, and the lis pendens were recorded against the property
and on the dates indicated in the public record. I do not,
however, take notice of any disputed facts stated in those
documents, including Toromanova's signature, which she
claims was forged. See Lee, 250 F.3d at 690.
MOTION TO DISMISS