-GWF Jackson v. Litton Loan Servicing LP, No. 2:2010cv01520 - Document 20 (D. Nev. 2011)
Court Description: ORDER granting 7 Motion to Dismiss. Litton Loan Servicing LP terminated. Signed by Judge Kent J. Dawson on 9/30/11. (Copies have been distributed pursuant to the NEF - MMM)
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-GWF Jackson v. Litton Loan Servicing LP Doc. 20 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 13 14 DARRELL JACKSON, 15 Plaintiff, 16 v. 17 Case No. 2:10-CV-01520-KJD-GWF LITTON LOAN SERVICING LP, et al., 18 ORDER Defendants. 19 20 Before the Court is the Motion to Dismiss filed by Litton Loan Servicing LP (#7). Plaintiff 21 filed an opposition (#9) and Defendant Litton filed a reply (#14). Litton also filed a Supplement to 22 the Motion to Dismiss (#19). 23 I. Background 24 Plaintiff was the owner of a property located at 1848 Longmeadow Street, Henderson, 25 Nevada (the “Property”). Defendant filed a Notice of Default on January 25, 2008. Plaintiff again 26 defaulted on his mortgage and a Notice of Default was recorded on January 22, 2009. A Notice of Dockets.Justia.com 1 Trustee’s Sale was recorded on April 22, 2009. In May 2009, the Notice of Default was rescinded 2 and a loan modification was executed. Plaintiff again failed to pay his mortgage and another Notice 3 of Default and Election to Sell was recorded on September 23, 2009. Plaintiff avers that he never 4 received documents relating to statutory mediation. Plaintiff also avers that the “Default was 5 rescinded on October 5, 2010 [sic].”1 (Compl. ¶ 12.) A Notice of Trustee’s Sale was recorded on 6 March 16, 2010 and the sale was completed on August 2, 2010. Plaintiff filed this action in Nevada 7 state court on July 29, 2010 and recorded a lis pendens that same day. 8 9 10 Plaintiff’s complaint alleges causes of action for wrongful foreclosure, promissory estoppel, and misrepresentation, and seeks preliminary and permanent injunctions. II. Discussion 11 A. Legal Standard 12 In considering a motion to dismiss for failure to state a claim under FRCP 12(b)(6), “all well- 13 pleaded allegations of material fact are taken as true and construed in a light most favorable to the 14 non-moving party.” Wyler Summit Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 15 661 (9th Cir.1998). Consequently, there is a strong presumption against dismissing an action for 16 failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) (citation 17 omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 18 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 19 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in 20 the context of a motion to dismiss, means that the plaintiff has pleaded facts which allow “the court 21 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The 22 Iqbal evaluation illustrates a two prong analysis. First, the Court identifies “the allegations in the 23 complaint that are not entitled to the assumption of truth,” that is, those allegations which are legal 24 conclusions, bare assertions, or merely conclusory. Id. at 1949–51. Second, the Court considers the 25 26 1 The Court presumes that Plaintiff means 2009. 2 1 factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. If the 2 allegations state plausible claims for relief, such claims survive the motion to dismiss. Id. at 1950. 3 B. Wrongful Foreclosure 4 Nevada recognizes the tort of wrongful foreclosure only where a homeowner alleges a lender 5 wrongfully exercised the power of sale and foreclosed upon his or her property when the homeowner 6 was not in default on the mortgage loan. See Collins v. Union Federal Sav. & Loan Ass'n, 99 Nev. 7 284, 662 P.2d 610, 623 (Nev.1983) (reversing summary judgment where there was a dispute of fact 8 about whether nonpayment was appropriate). Proper foreclosure procedures must be followed or the 9 sale will be invalid. See Rose v. First Fed. Sav. and Loan, 105 Nev. 454, 777 P.2d 1318 (1989) 10 11 (trustee’s sale invalid where notice requirements not satisfied). Plaintiff admits that he was in default. Plaintiff claims that the foreclosure was wrongful 12 because Defendant failed to comply with procedural rules. Specifically, Plaintiff avers that the 13 September 23, 2009 Notice of Default was rescinded and that the procedures for mediation were not 14 followed because he never received the Election to Mediate Form. 15 1. Notice of Default 16 Plaintiff’s contention that the October 5, 2009 Notice of Rescission rescinded the September 17 23, 2009 Notice of Default is simply wrong. The Notice of Rescission clearly states that it relates to 18 the January 25, 2008 Notice of Default. 2 Plaintiff acknowledged this fact in his opposition. Plaintiff 19 failed to meaningfully address the failure to recognize the clearly worded language of the Notice of 20 Rescission. Instead, Plaintiff simply attempted to excuse the carelessness with which this argument 21 was made by stating “it would be reasonable to assume that a recision [sic] which comes 22 approximately three weeks after the Notice of Default would be a recision [sic] for said Default.” 23 (Opp at 3.) This is not a meaningful response and Plaintiff’s argument is waived. See Local Rule 7- 24 25 26 2 The Court takes judicial notice of documents that are not subject to reasonable dispute and are in the public record, pursuant to Fed. R. Evid. 201. Consideration of these documents is appropriate at the motion to dismiss stage. See Branch v. Tunnell, 14 F3d 449, 454 (9th Cir. 1994). 3 1 2. Good cause exists to grant the Motion and accordingly, the Court grants Defendant’s Motion to 2 Dismiss the claim for wrongful foreclosure based on the Notice of Default issue. 3 2. Election to Mediate Form 4 Defendant seeks to introduce the Affidavit of Julie A. Butler in support of its argument that 5 the Election to Mediate Form was sent to Plaintiff. Pursuant to Fed. R. Civ. P. 12(d), introduction of 6 outside evidence converts Defendant’s attempt to dismiss this claim to a motion for summary 7 judgment. Summary judgment may be granted if the pleadings, depositions, answers to 8 interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine 9 issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 10 See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving 11 party bears the initial burden of showing the absence of a genuine issue of material fact. See 12 Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to set forth specific facts 13 demonstrating a genuine factual issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio 14 Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(e). All justifiable inferences must be viewed in 15 the light must favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. However, the 16 nonmoving party may not rest upon the mere allegations or denials of his or her pleadings, but he or 17 she must produce specific facts, by affidavit or other evidentiary materials provided by Rule 56(e), 18 showing there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 19 (1986). 20 Defendant engaged National Default Servicing Center (“NDSC”) to process the documents at 21 issue. Ms. Butler, a supervisor at NDSC has submitted an Affidavit stating that in September and 22 October 2009, it was NDSC’s business practice to send the Election to Mediate form to the defaulted 23 borrower along with the Notice of Default. Ms. Butler’s affidavit states that the Notice of Default 24 was sent to Plaintiff on September 23, 2009 and mailed by certified mail to Plaintiff at the Property. 25 Defendant has provided the certified mailing receipts from the United States Postal Service showing 26 delivery of the Notice of Default to Mr. Jackson. 4 1 Mailing of a document gives rise to a presumption of receipt. Hanknis v. Adm’r of Veterans 2 Affairs, 555 P.2d 483, 484 (Nev.1976). Courts in this District have granted summary judgment 3 where a plaintiff claimed not to have received a Notice of Trustee’s Sale, but an affidavit submitted 4 by defendants attested to the mailing of the Notice. Olivas v. Carrington Mortgage Loan Trust, 2010 5 WL 1815804, *4 (D.Nev. 2010) (plaintiff’s argument that contents of mailing “could have been 6 something else” insufficient to defeat summary judgment). Defendant has adduced evidence 7 showing that it was the practice of NDSC to mail the Election to Mediate Form along with the Notice 8 of Default. They have demonstrated that Plaintiff received the mailings from NDSC. This is 9 sufficient evidence to shift the burden to Plaintiff. Zenith Radio Corp., 475 U.S. at 587. Plaintiff has 10 offered no evidence to demonstrate a dispute of fact on this issue. Accordingly, summary judgment 11 is granted in favor of the Defendant on the claim for wrongful foreclosure based on failure to send 12 the Election to Mediate Form. 13 C. Promissory Estoppel 14 To state a claim for promissory estoppel a plaintiff must plead facts showing that (1) the party 15 to be estopped was apprised of the true facts; (2) he intended that his conduct should be acted upon, 16 or must have acted so that the party asserting estoppel had the right to believe it was so intended; (3) 17 the party asserting the estoppel was ignorant of the true state of facts; (4) the party must have relied 18 to his detriment on the conduct of the party to be estopped. See Pink v. Busch, 691 P.2d 456, 459 19 (1984). In general, the party claiming estoppel must specifically plead all facts relied on to establish 20 its elements. Nevada Nat. Bank v. Huff, 94 Nev. 506, 582 P.2d 364, 371 (Nev.1978), see also Patriot 21 Scientific Corp. v. Korodi, 504 F.Supp.2d 952, 967 (S.D.Cal.2007) (quoting Smith v. City of San 22 Francisco, 225 Cal.App.3d 38, 275 Cal.Rptr. 17, 23 (Cal.Ct.App.1990)). Indeed, courts in this 23 District have held that the heightened pleading standard of Fed. R. Civ. P. 9(b) applies to estoppel 24 claims. See Hasan v. Ocwen Loan Servicing, LLC, 2010 WL 2757971, 2 (D.Nev. 2010). 25 26 Here, Plaintiff’s complaint does not state a claim for promissory estoppel. Plaintiff claims to have “relied to his detriment that foreclosure would not occur and that a modification agreement 5 1 would be executed between the parties herein.” (Compl. ¶ 25.) But Plaintiff acknowledges that he 2 was “told that the sale will occur on August 2, 1010.” (Compl. ¶ 14.) Plaintiff does not state who 3 made statements suggesting that the loan would again be modified or that sale would not occur, when 4 these statements were made, or why reliance on them was appropriate. This is insufficient to show 5 that Plaintiff is entitled to relief and accordingly, the promissory estoppel claim is dismissed. 6 D. Misrepresentation 7 Plaintiff also avers that “Defendant has conducted a misrepresentation by making 8 representations that foreclosure would no occur during the modification process.” (Comp. ¶ 32.) 9 Plaintiff does not indicate whether the claim is for intentional or negligent misrepresentation. 10 However, both these claims must be pled with particularity in accordance with Fed. R. Civ. P. 9(b). 11 See Federal Trade Com’n v. Ivy Capital, Inc., 2011 WL 2118626 (D.Nev. 2011). In order to meet 12 the heightened pleading requirements of Rule 9(b) a plaintiff must specify the time, place, and 13 content of the misrepresentation as well as the names of the parties involved. See Kearns v. Ford 14 Motor Co., 567 F.3d 1120, 1124 (9th Cir.2009); see also, Yourish v. Cal. Amplifier, 191 F.3d 983, 15 993 n. 10 (9th Cir.1999); Parnes v. Gateway 2000, 122 F.3d 539, 549–50 (8th Cir.1997) (requiring a 16 plaintiff to allege the requisite who, what, where, when, and how of the misrepresentation). 17 Plaintiff fails to indicate the facts of the misrepresentation, as discussed supra, and 18 acknowledges that he was told that the sale would take place. This is insufficient to state a claim for 19 misrepresentation and accordingly, the claim is dismissed. 20 E. Injunctive Relief 21 Injunctive relief is not a separate cause of action or an independent ground for relief. See In re 22 Wal–Mart Wage & Hour Employ. Practices Litig., 490 F.Supp.2d 1091, 1130 (D.Nev. 2007) 23 (dismissing the count for injunctive relief because it was not an independent ground for relief or a 24 separate cause of action). Since the Court has dismissed each of Plaintiff’s underlying claims, he is 25 not entitled to injunctive relief. 26 6 1 2 3 III. Conclusion IT IS HEREBY ORDERED that the Motion to Dismiss filed by Litton Loan Servicing LP (#7) is GRANTED. 4 5 DATED this 30th day of September 2011. 6 7 8 9 _____________________________ Kent J. Dawson United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7
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