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Toromanova v. First American Trustee Servicing Solutions LLC

United States District Court, D. Nevada

July 9, 2019

DIMITRITZA H. TOROMANOVA, Plaintiff,
v.
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]

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Toromanova's 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.

         I. BACKGROUND

         On 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.[1] 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 No. 19-2.

         Magistrate 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.[2]

         Toromanova's 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.

         Rushmore now moves to dismiss Toromanova's complaint with prejudice and to expunge the lis pendens.

         II. REQUEST FOR JUDICIAL NOTICE

         To 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.[3] 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.

         As a 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).

         The 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.

         III. MOTION TO DISMISS

         A. ...


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