Vazquez et al v. Aurora Loan Services LLC et al
Filing
15
ORDER DISMISSING CASE with Prejudice of Plaintiff Vazquez et al., against Defendant Aurora Loan Services LLC et al., re 5 MOTION to Dismiss Complaint. Clerk shall enter Judgment of dismissal in favor of Defendants with prejudice. Signed by Judge Robert C. Jones on 4/20/2009. (Copies have been distributed pursuant to the NEF - DXS)
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Jeffrey S. Allison Nevada Bar 8949 HOUSER & ALLISON A Professional Corporation 9970 Research Drive Irvine, California 92618 Telephone: (949) 679-1111 Facsimile: (949) 679-1112 Stephanie Cooper-Herdman Nevada Bar No. 5919 THE COOPER CASTLE LAW FIRM, LLP 820 South Valley View Boulevard Las Vegas, Nevada 89107 Phone: (702) 435-4175 Fax: (702) 877-7424
E-filed 3/30/09
Attorneys for Defendants AURORA LOAN SERVICES LLC, erroneously sued herein as AURORA LOAN SERVICES; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., erroneously served herein as MORTGAGE ELECTRONIC REGISTRATION SERVICES, INC. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA JUAN VAZQUEZ, an individual GABRIELA SOTO, an individual Plaintiff, v. AURORA LOAN SERVICES, QUALITY LOAN SERVICE CORP FIDELITY NATIONAL DEFAULT SOLUTION., MORTGAGE ELECTRONIC REGISTRATION SERVICES, INC., And DOES 1 through 50, inclusive, Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO: 2:08-CV-01800-RCJ-RJJ HON. ROBERT C. JONES ORDER GRANTING MOTION TO DISMISS COMPLAINT
Defendants AURORA LOAN SERVICES LLC ("Aurora") and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ("MERS"), collectively "Defendants," filed and served their Motion to Dismiss Complaint on December 29, 2008, and the matter came on regularly for hearing pursuant to the notice by the Court on March 23, 2009 at 9:00 a.m., with no
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[PROPOSED] ORDER 1
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appearance by or on behalf of Plaintiffs and appearances on behalf of Defendants as noted on the record. The Motion was brought pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted against Defendants. The Motion was based upon the Notice of Motion, the Memorandum of Points and Authorities, Request for Judicial Notice including matters upon which judicial notice was requested and/or proper, and upon all pleadings and documents filed with this Court. Pursuant to the Notice of Motion, the Court's Notice of Electronic Filing, and this Court's Minute Order dated December 29, 2008, any response to the Motion was to be filed and served within 15 days, i.e. by no later than January 16, 2009. Local Rule 7-2(b). As provided in the Court's Minute Order, "The failure to file points and authorities in response to any motion shall constitute a consent to the granting of the motion. Local Rule 7-2(d). The Court may then grant the motion and dismiss the non-moving party's claims." The Court having considered the moving papers, its own files, and good cause appearing, and having granted said Motion rules as follows based on the grounds as set forth therein: 1. No response or opposition to the Motion was timely filed and served pursuant to
Local Rule 7-2(b). The Court may grant the motion to dismiss without a hearing where a local rule provides that a party failing to file a timely opposition is deemed to waive any objection to the motion. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Accordingly, pursuant to the grounds set forth in the Motion: 2. The first claim for wrongful foreclosure fails. The loan documents and
foreclosure notices recorded in the Official County Records sufficiently demonstrate standing by Defendants with respect to the loan and the foreclosure conducted pursuant to applicable law
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[PROPOSED] ORDER 2
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and Nevada foreclosure statutes. N.R.S. §§ 107.080 et. seq. The recitals in the recorded trustee's deed upon sale following its completion confirm that the foreclosure was properly noticed and completed pursuant to Nevada law. N.R.S. § 107.030(a). 3. The second and third claims for negligence fail against Defendants. The second
claim is not asserted against these Defendants. As to the third claim, neither Aurora nor MERS were the broker or lender of Plaintiffs' conventional home mortgage loan. Moreover, neither owes the alleged negligence duty as a matter of law. The elements of the claim cannot be stated against Defendants. 4. The fourth claim for quiet title fails as a matter of law. As established, no claim
can be stated for wrongful foreclosure and there is no basis to quiet title to the subject property back into Plaintiffs. IT IS THEREFORE ORDERED that the Defendants' Motion to Dismiss is GRANTED and judgment of dismissal shall be entered in favor of Defendants with prejudice.
April 20, 2009 DATED: _____________, 2009
_________________________________ UNITED STATES DISTRICT JUDGE
Respectfully submitted by, HOUSER & ALLISON A Professional Corporation _/s/ Jeffrey S. Allison_____ Jeffrey S. Allison Attorney for Defendant AURORA LOAN SERVICES LLC and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
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[PROPOSED] ORDER 3
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