Lee v. Countrywide Home Loans Inc. et al
Filing
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ORDER Canceling Lis Pendens. Signed by Judge Larry R. Hicks on 2/23/13. (Copies have been distributed pursuant to the NEF - EDS) Modified to correct signature date and signing judge on 2/26/2013 (EDS).
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AKERMAN SENTERFITT LLP
1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: (702) 634-5000 – FAX: (702) 380-8572
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ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
CHRISTINE M. PARVAN, ESQ.
Nevada Bar No. 10711
Akerman Senterfitt LLP
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144
Telephone:
(702) 634-5000
Facsimile:
(702) 380-8572
Email: ariel.stern@akerman.com
Email: christine.parvan@akerman.com
Attorneys for Defendants
Bank of America, N.A., successor by merger to BAC
Home Loans Servicing, LP, MERSCORP, Inc.,
Mortgage Electronic Registration Systems, Inc.,
Federal National Mortgage Association, and
Recontrust Company, N.A.
UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MONICA LEE, an individual,
Plaintiff,
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Case No.: 2:12-cv-00136-LRH-GWF
[Proposed]
vs.
ORDER CANCELING LIS PENDENS
BAC HOME LOANS SERVICING, LP;
MERSCORP, INC., a Virginia corporation;
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., a subsidiary of MERSCORP,
Inc., a Delaware corporation; FEDERAL
NATIONAL MORTGAGE ASSOCIATION;
RECONTRUST COMPANY; AND DOES
individuals 1 to 100, inclusive; and ROES
Corporations 1 to 30, inclusive; and all other
persons or entities unknown claiming any right,
title, estate, lien, or interest in the real property
described in the Complaint adverse to Plaintiff's
ownership, or any cloud upon Plaintiff's title
thereto,
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Defendants.
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The Court finds Lee recorded four (4) separate Notices of Lis Pendens Affecting Real
Property on or about August 31, 2011, November 14, 2011, February 7, 2012, and February 8, 2012,
respectively, as Instrument Numbers 201108310001762, 201111140000650, 201202070000681, and
201202080000118, respectively, in real property records maintained by the Clark County Recorder.
{24643410;1}
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Copies of the four (4) Lis Pendens are attached as Exhibits A, B, C, and D and fully incorporated
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by reference.
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On September 12, 2011 Lee filed an action in Case No. A-11-647394-C against defendants.
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The case was removed to the Eighth Judicial District Court on September 29, 2011 as Case 2:11-cv-
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01583-JCM–PAL and defendants filed a motion to dismiss. Judge Mahan dismissed Lee's complaint
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in its entirety. See Order Granting Motion to Dismiss First Complaint, Exhibit E.
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On September 13, 2011 Lee filed a second complaint in United States District Court, District
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of Nevada, Case No. 2:11-cv-01473-GMN-CWH, based on identical facts involving the same
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property. After Defendants again filed a motion to dismiss, Judge Navarro dismissed Lee's second
AKERMAN SENTERFITT LLP
1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: (702) 634-5000 – FAX: (702) 380-8572
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complaint in its entirety. See Order Granting Motion to Dismiss Second Complaint, Exhibit F.
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On April 25, 2012, Lee filed a third complaint (the instant action), relating to the same
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property and the same underlying facts. On April 25, 2012, defendants filed a motion to dismiss
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[Dkt. 14], which this Court granted on July 5, 2012 [Dkt. 18]. On August 10, 2012, defendants filed
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a motion to expunge lis pendens [Dkt. 20], which this Court granted on December 18, 2012 [Dkt.
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22].
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The Court:
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1.
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released and expunged.
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2.
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Pendens has the same effect as an expungement of all of the original Lis Pendens.
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Orders, adjudges, and decrees that all of the above-referenced Lis Pendens are canceled,
Further orders, adjudges and decrees that this Order canceling all of the above-referenced Lis
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3.
Further orders, adjudges and decrees defendants record a properly certified copy of this
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Cancellation Order in the real property records of Clark County, Nevada within a reasonable amount
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of time from the date of this Order's issue.
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APPROVED:
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DATED this 23rd day of February, 2013.
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UNITED STATES DISTRICT JUDGE
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Dated:
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AKERMAN SENTERFITT LLP
1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: (702) 634-5000 – FAX: (702) 380-8572
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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
DATED this 19th day of December 2012.
Submitted by:
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AKERMAN SENTERFITT LLP
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/s/ Christine Parvan
ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
CHRISTINE M. PARVAN, ESQ.
Nevada Bar No. 10711
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144
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Attorneys for Defendants
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Bank of America, N.A., successor by merger to
BAC Home Loans Servicing, LP, MERSCORP,
Inc., Mortgage Electronic Registration Systems,
Inc., Federal National Mortgage Association,
and Recontrust Company, N.A.
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{24643410;1}
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Exhibit A
Exhibit A
Exhibit B
Exhibit B
Exhibit C
Exhibit C
Exhibit D
Exhibit D
Exhibit E
Exhibit E
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MONICA LEE,
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2:11-CV-1583 JCM (PAL)
Plaintiff,
v.
BAC HOME LOANS SERVICING,
LP., et al.,
Defendants.
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ORDER
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Presently before the court is defendants Bank of America, N.A., successor by merger to BAC
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Home Loans Servicing, LP (“BofA”), MERSCORP, Inc., Mortgage Electronic Registration Systems,
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Inc. (“MERS”), Federal National Mortgage Association (“FNMA”), and ReconTrust Company,
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N.A.’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. #5). Plaintiff, appearing pro
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se, has filed an opposition (doc. #9), to which defendants have not responded.
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Background
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The facts, as alleged in the complaint, establish that on or about August 30, 2005, plaintiff
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secured a loan to purchase property located at 9168 Wine Cellar Avenue, Las Vegas, NV 89148.
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Compl. ¶ 2. The loan was secured by a first deed of trust on the property. Id. The basic premise of
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plaintiff’s lawsuit is that the note and deed of trust were separated from one another and thus the loan
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was no longer secured by the deed of trust. See id. ¶ 3; Pl.’s Opp. at 2:8-9.
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James C. Mahan
U.S. District Judge
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The court has taken judicial notice of the public documents filed as exhibits to defendants’
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motion to dismiss. These documents shed additional light on the facts of this case. For example,
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the deed of trust was recorded on September 8, 2005 and CTC Real Estate Services was designated
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as the trustee. See Defs.’ Mot. to Dismiss, Ex. A. Defendant ReconTrust was later substituted as
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trustee. Id., Ex. B. On November 12, 2009, defendant MERS assigned the deed of trust to BofA,
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and recorded the assignment on November 30, 2009. See id., Ex. C. The deed of trust lists MERS
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as the beneficiary and nominee of the lender and the lender’s assigns. Id., Ex. A. The deed of trust
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enables the lender to appoint a substitute trustee under the deed of trust and permit the lender to
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foreclose on the property if the borrower defaults. Id.
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Plaintiff defaulted on her loan February 1, 2009. ReconTrust, as agent for the beneficiary,
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MERS, recorded a notice of default and election to sell approximately one month later. See id., Ex.
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D. One month after that, ReconTrust recorded a notice of sale. Id., Ex. E. A second notice of sale
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was recorded on February 16, 2011. Id., Ex. F. The property was then sold to defendant FNMA.
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Id., Ex. G.
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Six months after the property was sold, and nearly six years after executing the loan
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documents, plaintiff filed suit alleging fifteen separate causes of action. The complaint alleged: (1)
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violations of the unfair lending practices statute, NRS § 598D; (2) deceptive trade practices; (3)
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conversion; (4) conspiracy to engage in conversion related to the MERS system; (5) inspection and
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accounting; (6) unjust enrichment; (7) breach of the implied covenant of good faith and fair dealing;
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(8) injunctive relief; (9) declaratory relief; (10) violations of the Fair Housing Act, 42 U.S.C. § 3601;
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(11) forcible entry; (12) forcible detainer; (13) wrongful ejectment; (14) wrongful occupancy of land;
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and (15) trespass.1
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James C. Mahan
U.S. District Judge
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The eighth (injunctive relief), and ninth (declaratory relief) thirteenth (wrongful ejectment)
and fourteenth (wrongful occupancy) causes of action are not recognized as causes of action in
Nevada. Injunctive relief and declaratory relief are remedies, not claims. Further, this court has
found no case or statutory law discussing wrongful ejectment or wrongful occupancy. Accordingly,
these “causes of action” are dismissed.
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Discussion
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A plaintiff must include a “short and plain statement of the claim showing that the pleader
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is entitled to relief.” FED. R. CIV. P. 8(a)(2). The statement of the claim is intended to “give the
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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp.
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v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Pursuant to Federal Rule of Civil
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Procedure 12(b)(6), courts may dismiss causes of action that “fail[] to state a claim upon which relief
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can be granted.”
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Courts must “accept all factual allegations in the complaint as true.” Tellabs, Inc. v. Makor
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Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). However, “[t]o survive a motion to dismiss, a
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complaint must contain sufficient factual matter . . . to state a claim to relief that is plausible on its
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face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted). Although “not
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akin to a ‘probability requirement,’” the plausibility standard asks for more than a sheer possibility
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that a defendant has acted unlawfully. Id.
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1.
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Pursuant to the version of the unfair lending practices statute in effect at the time of this loan,
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it was an unfair lending practice to approve a loan without considering a borrower’s ability to repay.
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The statute of limitations for claims alleging a violation of the unfair lending practices act is three
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years. See NRS § 11.190(3)(a) (creating a three-year statutory period for claims premised on a
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violation of a statute).
First Cause of Action: Violation of NRS § 598D
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Plaintiff signed the loan documents at issue in August of 2005. Plaintiff should have been
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aware at the time of origination whether or not she provided documentation regarding her ability to
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repay the loan. Plaintiff does not contend that she was unaware of the facts giving rise to her § 598D
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claim at the time she consummated the loan transaction. Accordingly, this cause of action accrued
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in 2005, when the loan was finalized. Therefore, the claim for unfair lending practices is time
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barred.
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2.
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Plaintiff’s second cause of action alleges deceptive trade practices pursuant to NRS §§
Second Cause of Action: Deceptive Trade Practices
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James C. Mahan
U.S. District Judge
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598.0915 and 598.0923. Compl. ¶ 40.
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Subsection 598.0915 makes knowingly making any false representation in a transaction a
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deceptive trade practice. Here, plaintiff alleges that “the defendants did not furnish plaintiff the
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correct [n]otice of [s]ervicing that the loan may be assigned, sold, or transferred to any other person
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in violation of 12 U.S.C. 2605(a).” Compl. ¶ 43. This claim is barred by the applicable statute of
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limitations for a claim under the Deceptive Trade Practices Act, which is four years. NRS
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11.190(2)(d). Again, plaintiff’s claim arises from the origination of the loan in August of 2005, and
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the instant action was filed in 2011, more than four years later.
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Subsection 598.0923 does not apply to this case: (1) plaintiff has not alleged, under
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subsection one, that any defendant has been conducting its business without a required license; (2)
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subsections two and three apply to the sale or lease of goods or services; (3) plaintiff has not alleged
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that any defendant, under subsection four, has used coercion, duress or intimidation in a transaction;
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and (4) no defendant was the seller in a land sale installment contract under subsection five.
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Moreover, many courts have recognized that the Deceptive Trade Practices act does not apply
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to real property transactions, but to the sale of goods and services. See Reyna v. Wells Fargo Bank,
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N.A., No. 2:10-cv-01730-KJD-RJJ, 2011 WL 2690087, *9 (D. Nev. July 11, 2011) (“N.R.S. § 598
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. . . applies only to goods and services and not to real estate loan transactions.”; see also Alexander
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v. Aurora Loan Services, No. 2:09-cv-1790-KJD-LRL, 2010 WL 2773796, *2 (D. Nev. July 8, 2010)
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(“Plaintiff's claim deals with the sale or lease of real property, not goods or services; therefore [
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N.R.S. § 598] does not provide an avenue of relief to [p]laintiff.”); Parker v. Greenpoint Mortgage
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Funding, No. 3:11-cv-00039-ECR-RAM (D. Nev. July 15, 2011) (N.R.S. § 598 “does not cover a
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mortgage foreclosure”).
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Accordingly, plaintiff’s second cause of action is dismissed.
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3.
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To allege a conspiracy to defraud, a complaint must meet the particularity requirements of
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Federal Rule of Civil Procedure 9(b) and inform each defendant of its actions that constituted joining
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the conspiracy. Graziose v. Am. Home Products Corp., 202 F.R.D. 638, 642 (D. Nev. 2001).
Third Cause of Action: Conversion; Fourth Cause of Action: Conspiracy
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James C. Mahan
U.S. District Judge
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Allegations of conspiracy should be accompanied by the who, what, when, where, and how of the
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misconduct. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).
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Here, plaintiff makes conclusory allegations of fraud and fails to individualize the
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defendants’ conduct. For example, plaintiff alleges that defendants “did willfully and knowing[ly]
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conspire and agree among themselves to engage in a conspiracy to promote, encourage, facilitate and
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actively engage in fraudulent and predatory lending practices.” Compl. ¶ 62. The complaint alleges
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that MERS was created as a fraudulent venture to take advantage of unwitting borrowers and that
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the defendants “acted as creators for the conspiracy.” Compl. ¶ 70-71. Such general and vague
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allegations are not sufficient to meet the heightened pleading standard of Rule 9(b). Accordingly,
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the third and fourth causes of action are dismissed as to all defendants.
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5.
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An action for inspection and accounting will prevail only where the plaintiff can establish
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that there exists a relationship of special trust between the plaintiff and defendant. McCurdy v. Wells
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Fargo, 2010 WL 4102943 (D. Nev. 2010). Absent special circumstances, no such relationship exists
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between a lender and a borrower. Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 882 (9th
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Cir. 2007).
Fifth Cause of Action: Inspection and Accounting
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Plaintiff alleges that “[d]ue to the unfair and deceptive nature of the Plaintiff’s loan
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transaction, the defendants were paid excessive interest and fees . . . Therefore proper discovery and
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accounting will reveal the ‘true realized’ status of the account as stated.” Compl. ¶ 78. However,
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plaintiff has failed to allege any special circumstances that would create the requisite fiduciary
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relationship between her, the borrower, and one or more defendants, as a lender. See McCurdy, 2010
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WL 4102943 (dismissing an action for inspection and accounting where plaintiff failed to allege the
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requisite relationship of trust). Accordingly, the fifth cause of action is dismissed as to all
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defendants.
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6.
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“An action based on a theory of unjust enrichment is not available when there is an express,
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written contract, because no agreement can be implied when there is an express agreement.”
Sixth Cause of Action: Unjust Enrichment
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James C. Mahan
U.S. District Judge
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Leasepartners Corp. v. Robert L. Brooks Trust, 942 P.2d 182, 187 (Nev. 1997) (per curiam). Thus
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the doctrine of unjust enrichment only “applies to situations where there is no legal contract but
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where the person sought to be charged is in possession of money or property which in good
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conscience and justice he should not retain but should deliver to another [or should pay for].” Id.
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Plaintiff’s complaint admits that she entered into an express contract when she executed the
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deed of trust and note. Compl. ¶ 2. Accordingly, her cause of action for unjust enrichment must fail.
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7.
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To state a claim of breach of the covenant of good faith and fair dealing, plaintiff must allege:
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(1) plaintiff and defendants were parties to an agreement; (2) the defendants owed a duty of good
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faith to the plaintiff; (3) the defendants breached that duty by performing in a manner that was
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unfaithful to the purpose of the contract; and (4) the plaintiff’s justified expectations were denied.
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Perry v. Jordan, 900 P.2d 335, 338 (Nev. 1995). In Nevada, an implied covenant of good faith and
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fair dealing exists in every contract, Consol Generator-Nevada v. Cummins Engine, 917 P.2d 1251,
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1256 (Nev. 1998), and a plaintiff may assert a claim for its breach if the defendant deliberately
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contravenes the intention and spirit of the agreement, Morris v. Bank Am. Nev., 886 P.2d 454 (Nev.
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1994). The covenant of good faith and fair dealing “only applies after a binding contract is formed.”
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Crellin Techs., Inc. v. Equipmentlease Corp., 18 F.3d 1, 10 (1st Cir. 1994).
Seventh Cause of Action: Implied Covenant of Good Faith and Fair Dealing
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Plaintiff alleges that defendants breached the duty in two ways. First, plaintiff contends that
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by failing to pay equal consideration to plaintiff’s financial interests, the defendants acted in bad
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faith. Second, plaintiff posits that defendants refused to negotiate with plaintiff in good faith after
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plaintiff requested payment assistance under the Home Affordable Modification Program
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(“HAMP”).
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Plaintiff’s first contention must fail because it is established that lenders owe no fiduciary
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obligations to borrowers absent exceptional circumstances. See Kwok v. CR Title Co., et. al., Case
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No. 2:09-cv-2298, slip op. at 5 (D. Nev. June 23, 2010) (Hunt, J.). No exceptional circumstances
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or special relationship was alleged here.
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James C. Mahan
U.S. District Judge
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Plaintiff’s second allegation regarding the covenant of good faith and fair dealing alleges that
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the defendants failed to meet their obligations under the federal HAMP program, and that the failure
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constitutes a breach of the covenant of good faith and fair dealing. Compl. ¶ 95. However, even if
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the plaintiff has a private right of action under HAMP, plaintiff has failed to allege any conduct by
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the defendants which deliberately contravened the intention and spirit of any agreement between
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them. In fact, none of plaintiff’s allegations stem from the loan agreement between the parties at all;
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plaintiff’s claim is more properly a statutory cause of action. Accordingly, claim seven is dismissed
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as to all defendants.
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8.
Tenth Cause of Action: Fair Housing Act
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The Fair Housing Act prohibits discrimination in making housing loans based on the “race,
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color, religion, sex, handicap, familial status, or national origin” of the applicant. See 42 U.S.C. §
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3605(a) and (b)(1). To assert a claim under the Fair Housing Act, plaintiff must establish: (1) that
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she is a member of a protected class; (2) that she applied for and was qualified for a loan; (3) that
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the loan was given on grossly unfavorable terms; and (4) that the lender continues to provide loans
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to other applicants with similar qualifications, but on significantly more favorable terms. Munoz v.
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Int’l Home Capital Corp., Case No. 03-1099 RS, 2008 WL 3086907, *4 (N.D. Cal. May 4, 2004).
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Plaintiff’s complaint does not address the majority of these factors. Plaintiff asserts that she
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speaks poor English. Assuming, without deciding, that this satisfies the first element by establishing
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that she is the member of a protected class, she still has not alleged that she was qualified for a better
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loan or that English speakers receive more favorable terms in their loans. Accordingly, this claim
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too must fail.
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9.
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Forcible entry is defined as entering upon or into real property by “breaking open doors,
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windows or other parts of a house, or by fraud, intimidation or stealth, or by any kind of violence or
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circumstance of terror. . .” NRS § 40.230.
Eleventh Cause of Action: Forcible Entry
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Plaintiff alleges that while she was away on business defendants “forcibly entered the
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property, unlawfully and without due process and warning changed locks to access the subject
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James C. Mahan
U.S. District Judge
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property.” Compl. ¶ 135.
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Defendants contend that plaintiff fails to assert a cause of action for forcible entry because
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she “alleges no facts to support her claim that defendants used force or violence to enter the property,
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or that they engaged in any other action that could possibly sustain a claim for forcible entry.” Def.’s
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Mot. 21:2-4. Further, citing Bonner v. Specialized Loan Servicing, LLC, 2011 WL 1199998, *3 (D.
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Nev. 2011), defendants assert that plaintiff implicitly authorized the entry because the underlying
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foreclosure was authorized should plaintiff have defaulted on her loans.
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This court agree with defendants, and finds that plaintiff cannot assert a cause of action for
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forcible entry because she not only failed to allege any acts of force, but also implicitly authorized
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defendants to change her door locks. Plaintiff understood that if she defaulted on her loan, she
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would face foreclosure. Thus, to the extent her forcible entry cause of action rests on the underlying
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foreclosure, it must be dismissed.
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10.
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To state a claim for forcible detainer a person must either be guilty of entering (1) by force,
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or by menaces or threats of violence, unlawfully holds and keeps the possession of any real property,
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whether the same was acquired peaceably or otherwise; or (2) who, in the nighttime, or during the
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absence of the occupant of any real property, unlawfully enters thereon, and who, after demand made
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for the surrender thereof, refuses for a period of 3 days to surrender the same to such former
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occupant. NRS. § 40.240. The occupant of real property within the meaning of this subsection is one
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who, within 5 days preceding such unlawful entry, was in the peaceable and undisturbed possession
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of such lands. Id.
Twelfth Cause of Action: Forcible Detainer
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Plaintiff alleges a violation of NRS. § 40.240, even though plaintiff implicitly granted access
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to defendants when she defaulted on the terms of her deed of trust, which specifically authorized the
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sale of said property in the event that plaintiff failed to make mortgage payments. Therefore, plaintiff
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cannot allege that defendant “unlawfully entered” or unlawfully held or kept possession of the
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property. This court agrees with the defendants that the foreclosure of the property was authorized
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by the plaintiff. As such, to the extent that this cause of action is based on the foreclosure sale, this
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James C. Mahan
U.S. District Judge
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claim is dismissed.
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Furthermore, plaintiff fails to allege that she made any demand to defendants to rechange the
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locks and that defendants refused said demand for a period of three days. These are essential
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elements of the tort of forcible detainer, and thus plaintiff’s cause of action must fail. See NRS §
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40.240(2).
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11.
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As evidenced by the deed of trust, plaintiff consented to lender's power of sale in the event
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that plaintiff defaulted on the terms of his deed of trust. According to the notice of default, Plaintiff
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breached her duty to make timely payments and the notice of trustee's sale shows that plaintiff did
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not cure such default. Thus, during the course of the foreclosure sale, any entry made on said
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property was specifically authorized by the plaintiff. Accordingly, the claim for relief for trespass
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is dismissed.
Fifteenth Cause of Action: Trespass
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Accordingly,
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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that defendants’ motion to
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dismiss (doc. #5) be, and the same hereby is, GRANTED.
IT IS THEREFORE ORDERED THAT plaintiff’s complaint is DISMISSED without
prejudice.
DATED November 18, 2011.
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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge
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Exhibit F
Exhibit F
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MONICA LEE, an individual,
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Plaintiff,
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vs.
BAC HOME LOANS SERVICING, LP;
MERSCORP, INC., et al.,
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Defendants.
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)
)
)
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)
)
)
Case No.: 2:11-cv-01473-GMN-CWH
ORDER
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Pending before the Court is Defendants’ Motion to Dismiss (ECF No. 17). Plaintiff has filed
no opposition to the motion.
Pursuant to Local Rule 7-2(b), the failure of an opposing party to file points and authorities in
response to any motion shall constitute consent to the granting of the motion.
Although a court may grant the Motion to Dismiss for failure to follow local rules, the Court
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must first consider five factors: (1) the public’s interest in expeditious resolution of litigation; (2) the
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court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy
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favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Ghazali
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v. Moran, 46 F.3d 52 (9th Cir. 1995). The Court has considered these factors and finds that Plaintiff
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has received ample notice and time within which to respond. The Court also finds that consideration
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of these five factors weighs in favor of granting Defendants’ Motion to Dismiss.
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Accordingly,
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IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (ECF No. 17) is
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GRANTED.
DATED this 5th day of January, 2012.
______________________________
Gloria M. Navarro
United States District Judge
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