United States District Court, D. Nevada
M. Navarro, United States District Court District Judge
before the Court is the Motion to Dismiss, (ECF No. 10),
filed by Defendants Bayview Loan Servicing, LLC, Robert
Hodapp, Zieve, Brodnax & Steele, LLP, and Shadd A. Wade,
to which Defendants Blank Rome LLP, Louise B Marencik, and
Bank of America, N.A. filed Joinders, (ECF Nos. 23, 30),
(collectively “Defendants”). Plaintiffs Ruben and
Ana Corona (“Plaintiffs”) did not file a
response. For the reasons stated below, the Court
GRANTS Defendants' Motion to Dismiss.
case concerns a non-judicial foreclosure on Plaintiffs'
real property located at 7312 Buttons Ridge Drive, Las Vegas,
Nevada 89131 (the “Property”). (Compl. at 1, ECF
No. 1). Plaintiffs purchased the Property through a loan of
$799, 999.00 from Southstar Funding LLC and Star Mortgage.
(Id. at 5). Plaintiffs allege that, after taking out
the loan, Defendants did not properly register the loan
documents. (Id. at 5-7, 9). That improper loan
registration caused Plaintiffs to make payments on a
“fake loan.” (Id. at 3). Upon
Plaintiffs' apparent failure to meet payment obligations
on that fake loan, Defendants commenced a foreclosure lawsuit
in a state court. (Id. at 6, 13). According to
Plaintiffs, the improper registration of loan documents meant
that the foreclosure proceedings in the state court occurred
without proper authority, without verification of a debt, and
without the proper parties to enforce the loan. (Id.
at 3-4, 12).
accordingly filed their Complaint with the Court on February
26, 2019, alleging the following causes of action: (1) breach
of contract; (2) scheme to defraud in violation of “the
Truth in Lending Act, Regulation Z, 12 CFR §
226.23”; (3) detrimental reliance; (4) unlawful
deception; (5) civil violation of the Racketeer Influenced
and Corrupt Organization Act; (6) wrongful foreclosure; (7)
slander of title; (8) violation of the Consumer Protection
Act, also referred to by Plaintiffs as the Nevada Deceptive
Trade Practices Act (NRS 598); (9) slander of credit; and
(10) intentional infliction of emotional distress.
(Id. at 5-11). Shortly afterward, Plaintiffs filed a
Motion for Temporary Restraining Order and Permanent
Injunction, (ECF Nos. 3, 4); and Defendants filed their
Response, (ECF No. 9), and a Motion to Dismiss, (ECF No. 10).
On April 25, 2019, the Court denied Plaintiffs' Motion
for Temporary Restraining Order and Permanent Injunction.
(Order, ECF No. 27).
Rule of Civil Procedure 12(b)(6) mandates that a court
dismiss a cause of action that fails to state a claim upon
which relief can be granted. See N. Star Int'l v.
Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.
1983). When considering a motion to dismiss under Rule
12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
Court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
Court, however, is not required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. See Sprewell v. Golden
State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A
formulaic recitation of a cause of action with conclusory
allegations is not sufficient; a plaintiff must plead facts
showing that a violation is plausible, not just
possible. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555).
may also dismiss a complaint pursuant to Federal Rule of
Civil Procedure 41(b) for failure to comply with Federal Rule
of Civil Procedure 8(a). Hearns v. San Bernardino Police
Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2)
requires that a plaintiff's complaint contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” “Prolix,
confusing complaints” should be dismissed because
“they impose unfair burdens on litigants and
judges.” McHenry v. Renne, 84 F.3d 1172, 1179
(9th Cir. 1996). Mindful of the fact that the Supreme Court
has “instructed the federal courts to liberally
construe the ‘inartful pleading' of pro se
litigants, ” Eldridge v. Block, 832 F.2d 1132,
1137 (9th Cir. 1987), the Court will view Plaintiff's
pleadings with the appropriate degree of leniency.
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion . . . .
However, material which is properly submitted as part of the
complaint may be considered on a motion to dismiss.”
Hal Roach Studios, Inc. v. Richard Feiner & Co.,
896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted).
Similarly, “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss” without converting the motion to dismiss into
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence
201, a court may take judicial notice of “matters of
public record.” Mack v. S. Bay Beer Distrib.,
798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the
district court considers materials outside of the pleadings,
the motion to dismiss becomes a motion for summary judgment.
See Arpin v. Santa Clara Valley Transp. Agency, 261
F.3d 912, 925 (9th Cir. 2001).
court grants a motion to dismiss, it must then decide whether
to grant leave to amend. The court should “freely
give” leave to amend when there is no “undue
delay, bad faith[, ] dilatory motive on the part of the
movant . . . undue prejudice to the opposing party by virtue
of . . . the amendment, [or] futility of the amendment . . .
.” Fed.R.Civ.P. 15(a); Foman v. Davis, 371
U.S. 178, 182 (1962). Generally, leave to amend is only
denied when it is clear that the deficiencies of the
complaint cannot be cured by amendment. See DeSoto v.
Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir.
assert the following grounds for dismissal of Plaintiffs'
Complaint: (1) failure to join a necessary party; (2)
inadequate factual allegations to support the claims; and (3)
improper service of process pursuant to Federal Rule of Civil
Procedure 4. (Mot. Dismiss 1:24- 9); (Joinder 2:3-5, ECF No.
23). The Court addresses each ground in turn below.
Failure to Join a Necessary Party
argue that the Complaint fails to name the necessary party of
Bank of New York Mellon (“BONYM”). BONYM,
according to Defendants, is the entity that both owned
Plaintiffs' loan prior to the Property's foreclosure
and purchased the Property during the foreclosure sale.
(See Assignment of Deed of Trust, Ex. F to
Defs.' Resp., ECF No. 9-6); (Notice of Trustee's
Sale, Ex. I to Defs.' Resp., ECF No. 9-9); (Trustee's
Deed Upon Sale, Ex. J to Defs.' Resp., ECF No.
Court stated in its Order on Plaintiffs' Motion for
Temporary Restraining Order, Plaintiffs' omission of
BONYM as a party to this action is fatal to the current
Complaint because, were Plaintiffs to be successful in their
claims here, BONYM would lose its interest in the Property.
(See Compl. at 13-14) (seeking, among other forms of
relief, a declaration that the foreclosure sale was void and
a discharge of Plaintiffs' debt related to the loan on
the Property). Accordingly, to proceed with this lawsuit
Plaintiffs must include BONYM as a party. See Fed.
R. Civ. P. 19(a). Because the Court dismisses Plaintiffs'
Complaint with leave to amend as explained below, Plaintiffs
will have an ...