-VCF Wilkinson et al v. Deutsche National Trust Bank Company, et al, No. 2:2012cv00253 - Document 28 (D. Nev. 2012)
Court Description: ORDER Granting 9 Motion to Dismiss. The plaintiffs' complaint is DISMISSED, provided however that plaintiffs' shall have leave to file a motion to amend within two weeks of the entry of this Order. IT IS FURTHER ORDERED that 6 Motion f or TRO is DENIED. IT IS FURTHER ORDERED that 12 Motion to Expunge Lis Pendens is GRANTED. IT IS FURTHER ORDERED that 22 Motion for Hearing is DENIED as moot. Signed by Judge Lloyd D. George on 9/17/2012. (Copies have been distributed pursuant to the NEF - DXS)
Download PDF
<![CDATA[
-VCF Wilkinson et al v. Deutsche National Trust Bank Company, et al Doc. 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 SUSAN G. WILKINSON, et al., 11 Plaintiffs, 12 v. 13 Case No. 2:12-cv-00253-LDG (VCF) DEUTSCHE BANK NATIONAL TRUST COMPANY, et al., ORDER 14 Defendants. 15 16 17 The plaintiffs, Susan G. Wilkinson and The Wilkinson Family Trust (the Trust), 18 brought this action in state court. Deutsche Bank National Trust Company removed this 19 matter. In their First Amended Complaint, the plaintiffs allege six causes of action. The first 20 four causes of action allege, generally, wrongful foreclosure under various theories. The 21 fifth cause of action appears to be a claim for quiet title. The remaining cause of action is 22 for slander of title. The plaintiffs have moved for a temporary restraining order (#6). 23 Deutsche Bank moves to dismiss the complaint for failure to state a claim upon which relief 24 can be granted (#9); the plaintiffs oppose the motion (#14). Deutsche Bank also moves to 25 expunge the lis pendens recorded by the plaintiffs (#12), and for a hearing on this motion 26 (#22). The plaintiffs also oppose these motions. Having considered the allegations of the Dockets.Justia.com 1 First Amended Complaint and the arguments of the parties, the Court will grant the motion 2 to dismiss and the motion to expunge, and will deny plaintiffs’ request for a temporary 3 restraining order. 4 Motion to Dismiss 5 The defendant’s motion to dismiss, brought pursuant to Fed. R. Civ. P. 12(b)(6), 6 challenges whether the plaintiffs’ complaint states “a claim upon which relief can be 7 granted.” In ruling upon this motion, the court is governed by the relaxed requirement of 8 Rule 8(a)(2) that the complaint need contain only “a short and plain statement of the claim 9 showing that the pleader is entitled to relief.” As summarized by the Supreme Court, a 10 plaintiff must allege sufficient factual matter, accepted as true, “to state a claim to relief that 11 is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 12 Nevertheless, while a complaint “does not need detailed factual allegations, a plaintiff’s 13 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels 14 and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 15 Id., at 555 (citations omitted). In deciding whether the factual allegations state a claim, the 16 court accepts those allegations as true, as “Rule 12(b)(6) does not countenance . . . 17 dismissals based on a judge’s disbelief of a complaint’s factual allegations.” Neitzke v. 18 Williams, 490 U.S. 319, 327 (1989). Further, the court “construe[s] the pleadings in the 19 light most favorable to the nonmoving party.” Outdoor Media Group, Inc. v. City of 20 Beaumont, 506 F3.d 895, 900 (9th Cir. 2007). 21 However, bare, conclusory allegations, including legal allegations couched as 22 factual, are not entitled to be assumed to be true. Twombly, 550 U.S. at 555. “[T]he tenet 23 that a court must accept as true all of the allegations contained in a complaint is 24 inapplicable to legal conclusions.” Ashcroft v. Iqbal 556 U.S. 25 (2009). “While legal conclusions can provide the framework of a complaint, they must be 26 2 , 129 S.Ct. 1937, 1949 1 supported by factual allegations.” Id., at 1950. Thus, this court considers the conclusory 2 statements in a complaint pursuant to their factual context. 3 To be plausible on its face, a claim must be more than merely possible or 4 conceivable. “[W]here the well-pleaded facts do not permit the court to infer more than the 5 mere possibility of misconduct, the complaint has alleged–but it has not ‘show[n]’–‘that the 6 pleader is entitled to relief.” Id., (citing Fed. R. Civ. Proc. 8(a)(2)). Rather, the factual 7 allegations must push the claim “across the line from conceivable to plausible.” Twombly. 8 550 U.S. at 570. Thus, allegations that are consistent with a claim, but that are more likely 9 explained by lawful behavior, do not plausibly establish a claim. Id., at 567. 10 11 Analysis In their complaint, the plaintiffs allege that Wilkinson and her husband signed a 12 Deed of Trust and a promissory note in favor of IndyMac Bank, F.S.B. That Deed of Trust, 13 which plaintiffs attached to their complaint, identifies Mortgage Electronic Registration 14 Systems, Inc. as the beneficiary of the security instrument “solely as nominee for Lender 15 and Lender’s successors and assigns.” Wilkinson and her husband subsequently 16 quitclaimed the property to the Trust. 17 In 2008, the Federal Deposit Insurance Corporation closed IndyMac Bank and 18 transferred its assets to IndyMac Federal Bank. In 2009, the FDIC transferred all assets of 19 IndyMac Federal Bank to OneWest Bank. In July 2011, MERS, “AS NOMINEE FOR 20 INDYMAC BANK,” assigned the Deed of Trust and the promissory note to Deutsche Bank. 21 Initially, the Court would note that the complaint is unclear as to the standing of 22 Wilkinson to bring any of the claims except in her capacity as a trustee of the Trust. The 23 first two numbered paragraphs of the First Amended Complaint allege that Wilkinson was 24 the owner of the property, but that the Trust is the owner. At most, the only relief sought by 25 Wilkinson is a request for injunctive relief that she not be evicted from the residence. 26 3 1 Deutsche Bank argues that none of the first four causes of action can be maintained 2 because (a) they sound as wrongful foreclosure claims, but (b) the plaintiffs have not 3 alleged that they were not in default at the time of the foreclosure sale. “An action for the 4 tort of wrongful foreclosure will lie if the trustor or mortgagor can establish that at the time 5 the power of sale was exercised or the foreclosure occurred, no breach of condition or 6 failure of performance existed on the mortgagor's or trustor's part which would have 7 authorized the foreclosure or exercise of the power of sale.” Collins v. Union Federal Sav. 8 & Loan Ass’n, 99 Nev. 284, 304 (Nev. 1983). 9 In opposing this argument, the plaintiffs neither dispute that their first four claims 10 sound in wrongful foreclosure nor that they were in default when the foreclosure sale 11 occurred. Rather, the plaintiffs argue only that Nevada legislature abrogated Collins’ 12 common law requirement that it not be in default when it enacted AB 149, which amended 13 NRS Chapter 107 to create the Foreclosure Mediation Program. The plaintiffs assert that 14 the Nevada Supreme Court recognized, in both Leyva v. Nat’l Default Servicing Corp, 127 15 Nev. Adv. Op. 40, 255 P.3d 1275 (Nev. 2011) and Pasillas v. HSBC Bank U.S., 127 Nev. 16 Adv. Op. 39, 255 P.3d 1281 (Nev. 2011), that a borrower in default could obtain judicial 17 review. The argument fails as both Leyva and Pasillas concerned the limited judicial 18 review afforded within the context of the Foreclosure Mediation Program, rather than a 19 common law claim for wrongful foreclosure. Accordingly, to the extent that the first four 20 claims allege torts of wrongful foreclosure, but plaintiffs have failed to allege that they were 21 not in default, dismissal is warranted. 22 The Court would further note that, as argued by the plaintiffs, fundamental to several 23 of their wrongful foreclosure claims are their allegations that they did not receive notice of 24 the default and election to sell. In reply, the defendant has proffered evidence that the 25 notice of default and election to sell was posted on the front door of the residence. 26 4 1 In addition, the plaintiffs also argue that their second primary theory underpinning 2 their claims is that Deutsche Bank has a defect in its chain of title because IndyMac Bank 3 had no legal authority to transfer its assets to Deutsche Bank in July 2011, as IndyMac 4 Bank was no longer in existence. As noted by Deutsche Bank, however, the Deed of Trust 5 (which the plaintiffs attached to their complaint) states that MERS was acting “solely as a 6 nominee for Lender [IndyMac Bank] and Lender’s Successors and Assigns.” The 7 allegations of the complaint establish that OneWest Bank is a successor to IndyMac Bank. 8 Accordingly, MERS had authority to act as nominee and execute an assignment of the note 9 and Deed of Trust to Deutsche Bank in July 2011. Accordingly, for these additional 10 reasons, dismissal of the plaintiffs’ claims for wrongful foreclosure is appropriate. 11 Deutsche Bank also seeks dismissal of the plaintiffs’ fifth claim, which appears to 12 sound as an action for quiet title. In opposition, the plaintiffs conceded that dismissal of 13 this claim is appropriate. 14 Finally, Deutsche Bank asserts that plaintiffs have failed to allege sufficient facts to 15 support a claim for slander of title. Plaintiffs do not dispute that the elements of slander of 16 title are (1) false and malicious communications, (2) disparaging to one’s title in land, (3) 17 causing special damage. Higgins v. Higgins, 103 Nev. 443, 445 (Nev. 1987). Deutsche 18 Bank argues that a heightened pleading standard applies, which the plaintiffs dispute. 19 However, as pointed out by Deutsche Bank, the complaint lacks any allegation of fact 20 indicating what false communication was made by Deutsche Bank, or indicating how 21 Deutsche Bank acted with malice. While the plaintiffs argue that a heightened pleading 22 standard does not apply, they fail to proffer any argument that the allegations of their 23 complaint comply with Rule 8 and the standard established in Twombly as it concerns their 24 sixth cause of action. Rather, the plaintiffs request only that they be granted leave to 25 further amend their complaint. The Court will dismiss the claim, but without prejudice so as 26 to permit the plaintiffs to file a motion to amend that complies with the local rules. 5 1 For substantially the same reasons previously cited, the Court will grant Deutsche 2 Bank’s motion to expunge the lis pendens recorded by plaintiffs, and will deny the plaintiffs’ 3 motion for a temporary restraining order. 4 THEREFORE, for good cause shown, 5 THE COURT ORDERS that Defendant Deutsche Bank National Trust Company’s 6 Motion to Dismiss (#9) is GRANTED. The plaintiffs’ complaint is DISMISSED; provided, 7 however, that plaintiffs shall have leave to file a motion to amend within two weeks of the 8 entry of this Order. 9 10 11 12 13 14 THE COURT FURTHER ORDERS that Plaintiffs’ Motion for Temporary Restraining Order (#6) is DENIED. THE COURT FURTHER ORDERS that Defendant Deutsche Bank National Trust Company’s Motion to Expunge Lis Pendens (#12) is GRANTED. THE COURT FURTHER ORDERS that Defendant Deutsche Bank National Trust Company’s Motion for Hearing (#22) is DENIED as moot. 15 16 DATED this ______ day of September, 2012. 17 18 Lloyd D. George United States District Judge 19 20 21 22 23 24 25 26 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
