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Dillon v. Bayview Loan Servicing

United States District Court, D. Nevada

September 30, 2019

DAWN D. DILLON, Plaintiffs,
v.
BAYVIEW LOAN SERVICING, et al, Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court are Plaintiff's “Praecipe for Personal Summons Extraordinary Writ of Execution Involuntary Bankruptcy Foreign Proceedings & Action” (ECF No. 1) and “Praecipe for Personal Summons Extraordinary Writ of Execution Probate & Tax Claim & Liquidation Foreign Proceedings, Misprison of Felony & Treason, Statement of Claim(s), Declaration of Unlawful Foreclosure Sale, Rape, Court Order, Subpoena & Notice to Clerk(s) & Bar Clerk(s)” (ECF No. 64) and several Motions to Dismiss filed by various Defendants. ECF Nos. 7, 13, 17, 20, 21, 65, 70. For the reasons stated below, the Court grants the Motions to Dismiss.

         II. PROCEDURAL BACKGROUND

         Plaintiff filed the initial document operating as the first complaint in this action on August 20, 2018 listing Bayview Loan Servicing, LLC, The Bank of New York Mellon, First Magnus Financial Corporation, JP Morgan Chase, Mortgage Electronic Registration Systems, Inc., Seaside Trustee, Inc., Ditech Financial LLC, Clark County Nevada, City of Las Vegas, Sheriff of Clark County, Bank of America, N.A., Fidelity National Title Company, and First American Title Insurance Company as defendants. ECF No. 1. Several Defendants filed the instant Motions to Dismiss. ECF Nos. 7, 13, 17, 20 and 21. Plaintiff filed her response to these motions on October 9, 2018. Ditech Financial LLC filed a Motion to Deem Party as a Vexatious Litigant on December 11, 2018 (ECF No. 41) which was joined by several Defendants (ECF No. 48, 49). Plaintiff filed the document operating as the second complaint in this action on May 30, 2019. ECF No. 64. Several Defendants filed and joined the instant Motions to Dismiss the second complaint. ECF Nos. 65, 70, 74. Defendants have also filed myriad Motions to Strike. ECF Nos. 33, 38, 93.

         III. FACTUAL ALLEGATIONS

         While it is somewhat difficult to ascertain allegations in Plaintiff's filings, the facts alleged appear to relate to a foreclosure sale. In her initial complaint (“Praecipe for Personal Summons Extraordinary Writ of Execution Involuntary Bankruptcy Foreign Proceedings & Action”), Plaintiff makes a number of allegations against Defendants as “Debtor(s).” ECF No. 1 at 2. Plaintiff states that on December 21, 2006 Defendants entered into a contract for a consumer loan transaction “with the United States and through Dawn D. Dillon.” Id. Plaintiff alleges Defendants received a personal loan directly from the “Creditors' Estates/Government” which is now delinquent. Id. Plaintiff alleges this loan is secured by property at 5003 Thunder River Cir., Las Vegas, NV 89148. The remainder of complaint ‘imposes' various duties on Defendants and purports to operate as a court order. See id. at 3-7.

         Plaintiff's second complaint states the foreclosure sale on her property “raped, harmed & damaged” her and her family and that her health has been damaged, she has lost sleep, and been unable to work. ECF No. 64 at 3. She also alleges that the “interference by the Clerk(s) & BAR Clerk(s) aided and abetted terrorist(s) to commit felonies & treason.” Id. at 5. She also alleges that Defendants engaged in “unfair debt collection practices, ” id. at 6, that Defendants trespassed on her property, id. at 9, that Defendants declined to accept a settlement, id. at 13, engaged in unfair and deceptive practices through their interpretation of the Lender's Policy, id. at 14, and that the loan she was given was a predatory loan, id. at 15-16, in violation of their “fiduciary of good faith and fair dealings, ” id. at 17-18. She further alleges the foreclosure sale was “unlawful” because it occurred outside the statutory timeframe, id. at 23, that she never received a “certified true and correct copy of the original NOTE with endorsements, ” id., and that Defendant Seaside Trustee, Inc. did not adequately advertise the foreclosure sale, id. at 24. As she does in the first complaint, Plaintiff orders Defendants to comply with demands she has made throughout the complaint, purporting to have the authority of a judicial officer. See id. at 1-37.

         IV. LEGAL STANDARD

         An initial pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The court may dismiss a complaint for failing to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted). In addition, documents filed by a plaintiff who is proceeding without counsel (as is the case here) must be liberally construed, and a pro se complaint must be “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (citations and quotation marks omitted); see also Butler v. Long, 752 F.3d 1177, 1180 (9th Cir. 2014).

         To survive a motion to dismiss, a complaint need not contain “detailed factual allegations, ” but merely asserting “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” is not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” meaning that the court can reasonably infer “that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In elaborating on the pleading standard described in Twombly and Iqbal, the Ninth Circuit has held that for a complaint to survive dismissal, the plaintiff must allege non-conclusory facts that, together with reasonable inferences from those facts, are “plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         V. DISCUSSION

         A. Motions to Dismiss First Complaint: ECF Nos. 7, 13, 17, 20, 21

         The Court will construe the two complaints as one operative document with allegations, but will divide its analysis based upon the allegations and respective arguments in the separately filed documents. Thus, the Court first considers ...


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