Suarez et al v Nationpoint, et al. - Document 47

Court Description:

ORDER that Defendants Motion to Dismiss 43 is GRANTED. Plaintiffs cause of action premised on violations of Nev. Rev. Stat. § 107.080 is DISMISSED without leave to amend, and their TILA, RESPA, and RICO causes of action are DISMISSED with lea ve to amend. Plaintiffs may file an Amended Complaint correcting the deficiencies in their current Complaint by August 18, 2011. Failure to file an Amended Complaint by that date will result in the dismissal of this lawsuit with prejudice. Signed by Judge Gloria M. Navarro on 8/2/11. (Copies have been distributed pursuant to the NEF - ECS)

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 7 8 9 DIMAS ARQUIMEDES SUAREZ, et al., ) ) Plaintiffs, ) vs. ) ) NATIONPOINT A DIVISION OF ) NATION, CITY BANK OF IN, et al., ) ) Defendants. ) ) Case No.: 2:10-cv-00113-GMN-RJJ ORDER 10 11 Pending before this Court is Defendant NationPoint‟s Motion to Dismiss (ECF No. 43). 12 Plaintiffs filed a Response (ECF No. 45), to which Defendant filed a Reply (ECF No. 46). For 13 the reasons that follow, Defendant‟s Motion to Dismiss (ECF No. 43) will be GRANTED. 14 Plaintiffs‟ cause of action premised on violations of Nev. Rev. Stat. § 107.080 will be 15 DISMISSED without leave to amend, and their TILA, RESPA, and RICO causes of action 16 will be DISMISSED with leave to amend. 17 I. BACKGROUND 18 This case arises out of foreclosure proceedings that have been initiated against 19 Plaintiffs‟ residence. Although Plaintiffs, who are self-represented, admit that they defaulted 20 on their home loan, (see Resp. 5:14-15, ECF No. 45), they filed a Complaint against 21 NationPoint and Cal-Western Reconveyance, listing Declaratory Relief, Injunctive Relief, 22 Accounting, Judicial Review, and Other Relief as their “causes of action.” Defendant Cal- 23 Western Reconveyance has not appeared in this lawsuit, nor is there any evidence in the record 24 suggesting that it has been properly served with process. 25 Defendant NationPoint now seeks dismissal of Plaintiffs‟ Complaint, contending that it Page 1 of 5 1 fails to state any substantive claims upon which relief can be granted. 2 II. MOTION TO DISMISS STANDARD Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 3 4 claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice 5 of what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 6 47 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of 7 action that fails to state a claim upon which relief can be granted. A motion to dismiss under 8 Rule 12(b)(6) tests the complaint‟s sufficiency. See North Star Int’l. v. Arizona Corp. 9 Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under 10 Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint 11 does not give the defendant fair notice of a legally cognizable claim and the grounds on which 12 it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the 13 complaint is sufficient to state a claim, the Court will take all material allegations as true and 14 construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 15 F.2d 896, 898 (9th Cir. 1986). The Court, however, is not required to accept as true 16 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 17 inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A 18 formulaic recitation of a cause of action with conclusory allegations is not sufficient; a 19 plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. 20 Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). Mindful of the fact that the Supreme Court has “instructed the federal courts to liberally 21 22 construe the „inartful pleading‟ of pro se litigants,” Eldridge v. Block, 832 F.2d 1132, 1137 23 (9th Cir. 1987), the Court will view Plaintiffs‟ pleadings with the appropriate degree of 24 leniency. 25 /// Page 2 of 5 1 III. DISCUSSION 2 Construing Plaintiffs‟ Complaint liberally, the only substantive causes of action 3 Plaintiffs attempt to plead are: violations of Nev. Rev. Stat. § 107.080, TILA, and RESPA, as 4 well as civil racketeering. Plaintiffs fail to state a legally cognizable claim under any theory. 5 A. 6 Plaintiffs appear to be alleging that the foreclosure proceedings were statutorily 7 improper for two reasons. First, Plaintiffs contend that Defendants failed to wait three months 8 after recording the Notice of Default before recording the Notice of Trustee‟s Sale. (Compl. ¶ 9 15.) Second, Plaintiffs appear to be arguing that they are not in default and that the foreclosure 10 11 Violations of Nev. Rev. Stat. § 107.080 proceedings are therefore inappropriate. (Compl. ¶ 16.) Plaintiffs‟ first argument is defeated by the judicially noticeable Notice of Default and 12 Notice of Trustee‟s Sale that are attached to Defendant‟s Motion to Dismiss and are not 13 contested by Plaintiffs. (See Exs. C & D, Mot., ECF No. 43.) The Notice of Default was 14 recorded in November of 2007, whereas the Notice of Trustee‟s Sale was not recorded until 15 December of 2009. Therefore, there were far more than ninety days between the recording of 16 the two Notices. 17 Plaintiffs‟ second argument is defeated by their own pleadings. Although Plaintiffs 18 initially allege that “the Plaintiff [sic] is not in default under the terms of the promissory note 19 and deed of trust” (Compl. ¶ 16), Plaintiffs later admit that they are in default but that they 20 dispute the exact amount they owe, writing “there exists an actual controversy between 21 Plaintiff and Defendant NaitonPoint [sic] regarding their respective rights, duties and 22 obligations related to the pending nonjudicial foreclosure sale in that Defendant Nation Point 23 contends that $355,344.99 is owed, whereas Plaintiff contends that the approximate sum of 24 $277,000 is owed,” (Compl. ¶ 16). Plaintiffs also admit default in their Response to the 25 Motion to Dismiss, explaining that: “If Nation Point would have keep [sic] to their Page 3 of 5 1 commitments the Suarez would not be in default on the note.” (Resp. 5:14-15, ECF No. 45.) 2 Accordingly, Plaintiffs‟ cause of action for Violations of Nev. Rev. Stat. § 107.080 will be 3 dismissed. Because amendment would be futile as to both of Plaintiffs‟ arguments under this 4 statute, leave to amend will not be granted. 5 B. 6 Under their “Other Relief” cause of action, Plaintiffs request “an Order staying the TILA, RESPA, and RICO Causes of Action 7 foreclosure sale in this case pending the full determination of [Plaintiffs‟] Federal action for 8 Violations of the Federal Truth-in-Lending Act, the Federal Real Estate Settlement Procedures 9 Act, Civil RICO under the Nevada RICO statute, and for other relief.” (Compl. ¶ 46.) 10 However, Plaintiffs fail to plead facts giving rise to any of these claims. Because conclusory 11 allegations of entitlement to relief do not fulfill the Rule 8(a) pleading standard, see Iqbal, 129 12 S. Ct. at 1949, these causes of action will be dismissed, though Plaintiffs will be given leave to 13 amend them. 14 C. Additional Requests by Plaintiffs 15 Because Plaintiffs have failed to state any cognizable legal claims, their requests for 16 declaratory relief, injunctive relief, and an accounting cannot be granted. Further, an 17 accounting is only appropriate if a plaintiff can establish the existence of “a relationship of 18 special trust between the plaintiff and defendant,” Anderson v. Deutsche Bank National Trust 19 Co., No. 2:10-cv-01443-JCM-PAL, 2010 WL 4386958, at *4 (D. Nev. Oct. 29, 2010). 20 Plaintiffs have not set forth sufficient facts to establish such a relationship here. 21 22 CONCLUSION IT IS HEREBY ORDERED that Defendant‟s Motion to Dismiss (ECF No. 43) is 23 GRANTED. Plaintiffs‟ cause of action premised on violations of Nev. Rev. Stat. § 107.080 is 24 DISMISSED without leave to amend, and their TILA, RESPA, and RICO causes of action 25 are DISMISSED with leave to amend. Plaintiffs may file an Amended Complaint correcting Page 4 of 5 1 the deficiencies in their current Complaint by August 18, 2011. Failure to file an Amended 2 Complaint by that date will result in the dismissal of this lawsuit with prejudice. 3 DATED this 2nd day of August, 2011. 4 5 6 7 ________________________________ Gloria M. Navarro United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 5 of 5