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Kaviani v. Caliber Home Loans

United States District Court, D. Nevada

July 17, 2019

CALIBER HOME LOAN, et al., Defendants.



         I. SUMMARY

         Pro se Plaintiff Javad Kaviani sued Caliber Home Loan, Inc. (“Caliber” or “Defendant”), and Quality Loan Service Corporation (“Quality”) because Caliber refused to sell its interest in a deed of trust encumbering real property located at 10400 Sloping Hill Ave., Las Vegas, Nevada (the “Property”), to an LLC controlled by Plaintiff, even though Plaintiff's brother purchased a homeowners' association lien that also encumbered the Property, and because Caliber attempted to foreclose on the Property several times even though Plaintiff's brother had entered bankruptcy. (ECF No. 1-1.) Plaintiff alleges six causes of action arising under state common law. (Id.) Caliber removed based on diversity of citizenship.[1] (ECF No. 1.) Before the Court are Plaintiff's motion to remand because of an insufficient amount in controversy (“Motion to Remand”) (ECF No. 12), Caliber's motion to dismiss the case (“Motion to Dismiss”) (ECF No. 14), and Plaintiff's ex parte motion for a temporary restraining order preventing the Property from being sold at a foreclosure sale on July 19, 2019 (“TRO Motion”) (ECF No. 26).[2]Because the Court agrees with Defendants-for various reasons, as explained below- the Court will deny Plaintiffs Motion to Remand, grant Caliber's Motion to Dismiss, [3] and deny Plaintiff's TRO Motion as moot.


         The facts described herein are mostly adapted from Plaintiff's Complaint.

         Karen Marie Wilson and her husband purchased the Property in 1998 by obtaining a loan (“Loan”) subject to a mortgage agreement and a corresponding deed of trust encumbering the Property (the “DOT”). (ECF No. 1-1 at 4.) Caliber now owns the Loan and DOT. (Id.) In 2002, the Property was transferred to Wilson as her sole property. (Id.) Sometime after that, Wilson stopped paying her homeowners' association (“HOA”) dues. (Id.) The HOA encompassing the Property foreclosed on the Property under NRS § 116.3116, et seq. (Id.)

         Non-party Ahmad Kaviani[4] purchased the HOA's interest in the Property at a foreclosure sale in 2017. (Id.) Specifically, the deed evidencing Ahmad Kaviani's interest in the Property states, “HOA Foreclosure Deed - Subject to First Mortgage Superpriority Amount Satisfied.” (ECF No. 1-1 at 24.) Plaintiff further alleges “[t]hat Ahmad Kaviani purchased the subject property through the HOA foreclosure sale, fully aware that the HOA Foreclosure Deed would be subject to the first mortgage.” (Id. at 8.)

         In October 2017, an entity called KIC Funding LLC[5] (“KIC”) agreed with Ahmad Kaviani and Wilson to purchase the Property for the amount required to pay off the mortgage. (Id. 4.) But Wilson tragically passed away in November 2017. (Id.) So they were apparently never able to consummate their agreement.

         Meanwhile, nobody appears to have been paying the mortgage. Thus, Caliber sought to foreclose on the Property for the amount it was owed under the mortgage agreement, setting a foreclosure auction for June 8, 2018. (Id. at 5.) Ahmad Kaviani filed for bankruptcy protection the day before the sale was set to occur, June 7, 2018. (Id.) In addition, sometime before the foreclosure sale, Plaintiff negotiated with Caliber to pay off the mortgage on the Property for $185, 000, including tendering a cashier's check for that amount, but Caliber rejected Plaintiffs offer. (Id.) The foreclosure sale thus went ahead as scheduled, but nobody purchased the Property, so it reverted to Caliber. (Id.)

         On June 12, 2018, non-party Bill Waller of Platinum Properties posted a notice of foreclosure on the Property's door. (Id.) In doing so, Mr. Waller told a tenant who had just moved in that the Property had been foreclosed upon, was now owned by Caliber, and that Caliber planned to evict the tenant. (Id.) The tenant was upset. (Id. at 6.) The tenant refused to pay Ahmad Kaviani any rent, and demanded compensation to cover the cost of moving into and out of the Property. (Id.)

         Ahmad Kaviani then contacted Quality to ask why the foreclosure sale had occurred even though he had filed for bankruptcy. (Id.) Quality's counsel told Ahmad Kaviani the foreclosure sale would be rescinded because Quality had overlooked Ahmad Kaviani's bankruptcy filing. (Id.) On August 13, 2018, Ahmad Kaviani's bankruptcy petition was dismissed. (Id.) Caliber again noticed the Property for a foreclosure auction on October 12, 2018, and Ahmad Kaviani again filed for bankruptcy on October 11, 2018. (Id. at 7.) That bankruptcy petition was dismissed on April 5, 2019. (ECF No. 14 at 5.)

         On October 19, 2018, a state probate court in Las Vegas tasked with settling Wilson's estate declared that Ahmad Kaviani is the legal owner of the Property and quieted title in his favor. (ECF No. 14-3 at 4.) In that same order, Plaintiff was appointed the Special Administrator of Wilson's estate, an appointment limited in scope to “quieting and declaring title” to the Property. (Id. at 5; see also ECF No. 1-1 at 16.)

         On July 2, 2019, another notice-indicating another foreclosure attempt-was posted on the Property's door. (ECF No. 26 at 1.) That notice stated the foreclosure sale will occur on July 19, 2019. (Id.) Plaintiff filed the TRO Motion on July 15, 2019, seeking to prevent the foreclosure sale from taking place on July 19. (Id.)

         Plaintiff's Complaint asserts six claims: (1) breach of the covenant of good faith and fair dealing; (2) tortious interference; (3) unjust enrichment; (4) restraint of trade; (5) fraudulent misrepresentation; and (6) specific performance. (ECF No. 1-1.) Claims 1 and 6 relate to Caliber's refusal to sell its interest in the Property to Plaintiff to date, where claim 6 seeks an order directing Caliber to sell its interest in the Property for a particular price. (Id. at 12-13.) Claims 2-5 relate to Caliber's attempts to foreclose on the Property while Ahmad Kaviani repeatedly filed for bankruptcy, basically alleging that Caliber's foreclosure attempts harmed Ahmad Kaviani's ability to collect rent on the Property because one or more of his tenants refused to pay rent when they learned the Property was being foreclosed on, and harmed both Plaintiff and Ahmad Kaviani because they have paid for upkeep of the Property.

         III. MOTION TO REMAND (ECF NO. 12)[6]

         This is a diversity case that Caliber removed to this Court. (ECF No. 1 at 3-4.) Plaintiff moves to remand because he is seeking monetary damages in excess of $50, 000 and brings claims under state law. (ECF No. 12 at 1-2.) He further states he would like the Court “to remand the case back to the State Court so that he can seek injunctive relief against Caliber before the Property is sold at foreclosure.” (Id. at 2.) Defendant counters it properly removed this case because Plaintiff seeks injunctive relief regarding the ...

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