United States District Court, D. Nevada
ORDER GRANTING DEFENDANT PACIFIC'S MOTION TO
DISMISS AND SETTING DEADLINE FOR FILING AN AMENDED COMPLAINT
[ECF NO. 36]
P. GORDON, UNITED STATES DISTRICT JUDGE
Bank of New York Mellon (BONY) sues to determine whether its
deed of trust still encumbers property located at 2961
Juniper Hills #101 in Las Vegas, Nevada, following a
non-judicial foreclosure sale conducted by the homeowners
association (HOA), defendant Pacific Harbors-Stonegate
Property Owners Association (Pacific). Pacific moves to
dismiss the claims against it, arguing BONY's claims are
time-barred and fail to state a claim. BONY opposes dismissal
and alternatively requests leave to amend.
parties are familiar with the facts, and I will not repeat
them here except where necessary. I deny Pacific's motion
to dismiss based on the statute of limitations because
BONY's claims against Pacific are timely. I grant
Pacific's motion to dismiss the declaratory relief
claim's due process allegations with prejudice. I grant
Pacific's motion to dismiss it from the declaratory
relief claim's other allegations because BONY has not
plausibly alleged a basis to set aside the sale. I grant
Pacific's motion to dismiss BONY's claims for
wrongful foreclosure and breach of a duty of good faith under
Nevada Revised Statutes § 116.1113 because BONY has not
adequately alleged what Pacific did that was wrongful or how
it breached a duty of good faith in light of BONY's
allegations that it validly tendered the superpriority amount
and Pacific's agent accepted that tender. Finally, I
grant in part Pacific's motion to dismiss BONY's
claim under the Nevada Deceptive Trade Practices Act (NDTPA)
because some allegations refer to the sale of goods and
services, which is not at issue here. However, I deny
Pacific's motion as to other provisions of the NDTPA
because those statutory sections may apply to real estate
transactions and Pacific has not shown BONY cannot assert a
claim under those provisions.
Statute of Limitations
claim may be dismissed as untimely pursuant to a 12(b)(6)
motion only when the running of the statute of limitations is
apparent on the face of the complaint.” United
States ex rel. Air Control Techs., Inc. v. Pre Con Indus.,
Inc., 720 F.3d 1174, 1178 (9th Cir. 2013) (alteration
and quotation omitted). A limitations period begins to run
“from the day the cause of action accrued.”
Clark v. Robison, 944 P.2d 788, 789 (Nev. 1997). A
cause of action generally accrues “when the wrong
occurs and a party sustains injuries for which relief could
be sought.” Petersen v. Bruen, 792 P.2d 18, 20
(Nev. 1990); see also State ex rel. Dep't of Transp.
v. Pub. Emps.' Ret. Sys. of Nev., 83 P.3d 815, 817
(Nev. 2004) (en banc) (“A cause of action
‘accrues' when a suit may be maintained
thereon.” (quotation omitted)). Nevada has adopted the
discovery rule, and thus time limits generally “do not
commence and the cause of action does not ‘accrue'
until the aggrieved party knew, or reasonably should have
known, of the facts giving rise to the damage or
injury.” G & H Assocs. v. Ernest W. Hahn,
Inc., 934 P.2d 229, 233 (Nev. 1997).
argues BONY's claims are untimely because they are
subject to either a 45- or 60-day limitation period under
Nevada Revised Statutes § 107.080, but it provides no
authority for that proposition. Section 107.080 refers to
foreclosures of deeds of trust, not HOA liens. Nev. Rev.
Stat. § 107.080(1).
the four-year catchall limitation period in Nevada Revised
Statutes § 11.220 applies to claims brought by a
lienholder like BONY seeking to determine whether an HOA sale
extinguished its deed of trust. See Bank of Am., N.A. v.
Country Garden Owners Ass'n, No.
2:17-cv-01850-APG-CWH, 2018 WL 1336721, at *2 (D. Nev. Mar.
14, 2018). BONY's claims for wrongful
foreclosure and breach of § 116.1113 are governed by
three or four-year limitations periods. See Bank of New
York for Certificateholders of CWALT, Inc., Alternative Loan
Tr. 2006-OA16, Mortg. Pass-Through Certificates, Series
2006-OA16 v. Foothills at MacDonald Ranch Master
Ass'n, 329 F.Supp.3d 1221, 1234 (D. Nev. 2018);
Nationstar Mortg. LLC v. Amber Hills II Homeowners
Ass'n, No. 2:15-cv-01433-APG-CWH, 2016 WL 1298108,
at *5 (D. Nev. Mar. 31, 2016).
sale was conducted on September 9, 2014, and the deed upon
sale was recorded on September 19, 2014. ECF No. 1 at 6. BONY
filed this lawsuit on January 6, 2017. Thus, even using the
earlier date of the HOA sale, and even considering a
three-year limitation period, BONY's claims are timely.
Accordingly, I deny Pacific's motion to dismiss based on
the statute of limitations.
Failure to State a Claim
considering a motion to dismiss, “all well-pleaded
allegations of material fact are taken as true and construed
in a light most favorable to the non-moving party.”
Wyler Summit P'ship v. Turner Broad. Sys., Inc.,
135 F.3d 658, 661 (9th Cir. 1998). However, I do not assume
the truth of legal conclusions merely because they are cast
in the form of factual allegations. See Clegg v. Cult
Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
A plaintiff must make sufficient factual allegations to
establish a plausible entitlement to relief. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007). Such
allegations must amount to “more than labels and
conclusions, [or] a formulaic recitation of the elements of a
cause of action.” Id. at 555.
first claim seeks a declaration that the deed of trust was
not extinguished by the HOA foreclosure sale. Included within
that claim are allegations that Chapter 116 as it existed at
the time of the sale violated BONY's due process rights.
Pacific moves to dismiss the due process allegations. To the
extent BONY's due process allegations are based on the
reasoning of Bourne Valley Court Trust v. Wells Fargo
Bank, NA, 832 F.3d 1154 (9th Cir. 2016) or the content
of the foreclosure notices, I grant Pacific's motion.
See Bank of Am., N.A. v. Arlington W. Twilight Homeowners
Ass'n, 920 F.3d 620, 623-24 (9th Cir. 2019) (citing
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