-PAL Claros v. Landamerica Onestop, Inc., et al, No. 2:2010cv01788 - Document 48 (D. Nev. 2011)
Court Description: ORDER Granting 10 , 21 , and 38 Motions to Dismiss. The clerk is instructed to close this case. Signed by Chief Judge Roger L. Hunt on 3/24/11. (Copies have been distributed pursuant to the NEF - ASB)
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-PAL Claros v. Landamerica Onestop, Inc., et al Doc. 48 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 SAUL CLAROS, 10 11 12 13 14 15 16 17 18 19 20 21 ) ) Plaintiff, ) ) vs. ) ) LANDAMERICA ONESTOP, INC.; ) MORTGAGE ELECTRONIC ) REGISTRATION SYSTEMS; METLIFE ) HOME LOANS; FIRST HORIZON HOME ) LOANS CORPORATION; UTLS NATIONAL ) DEFAULT SERVICES, LLC; S.B. ) MANAGEMENT, LLC, David Zepeda, Trustee ) of the David Rose, Chris Rose, Sam Kirby, Irv ) Kirby, Jack, Cad, Lydia Cadman, Kenneth ) Gilbert, Fran Gilbert Trust, W.J. Bradley, Frank ) Ruualcaba; Bonnie Mac, Individually; Federal ) National Mortgage Association UNKNOWN ) BENEFICIARIES/SUCCESSORS AND/OR ) PREDECESSORS an ens legis being used to ) conceal fraud, AND JOHN DOES ) INVESTORS 1-50, et. al., ) ) Defendants. ) _______________________________________) Case No.: 2:10-cv-1788-RLH-PAL ORDER (Motion to Dismiss–#10; Motion to Dismiss–#21; Motion to Dismiss–#38) 22 23 Before the Court is Defendant Mortgage Electronic Registration Systems, Inc.’s 24 (“MERS”) Motion to Dismiss (#10, filed Nov. 10, 2010) for failure to state a claim. The Court 25 has also considered Plaintiff Saul Claros’ Opposition (#18, filed Nov. 18. 2010), and MERS’ 26 Reply (#25, filed Nov. 29, 2010). AO 72 (Rev. 8/82) 1 Dockets.Justia.com 1 Also, before the Court is Defendants Federal National Mortgage Association 2 (“Fannie Mae”) and Lender Business Process Services’ (“LBPS”) Motion to Dismiss (#21, filed 3 Nov. 22, 2010) for failure to state a claim. The Court has also considered Claros’ Opposition 4 (#28, filed Nov. 30, 2010), and Fannie Mae and LBPS’ Reply (#37, filed Dec. 10, 2010). 5 Finally, before the Court is Defendants MetLife Bank, N.A. (“MetLife”) and First 6 Horizon Home Loans Corporation’s (“First Horizon”) Motion to Dismiss (#38, Dec. 27, 2010) for 7 failure to state a claim. Claros did not file an opposition. 8 BACKGROUND 9 In November 2004, Claros refinanced his home located in Las Vegas. The deed of 10 trust for the refinanced mortgage loan named First Horizon as the lender, Fidelity National Title as 11 the trustee, and MERS as the beneficiary. In late 2008 or early 2009, Claros defaulted on this loan 12 and Defendant LandAmerica Onestop, Inc., acting as agent for MERS, issued a notice of default. 13 Claros subsequently hired Defendant S.B. Management, a California company, to assist him in 14 modifying the loan or to stop the pending foreclosure. Specifically, Claros alleges that S.B. 15 Management promised to pay off the refinanced loan and accept monthly payments from Claros 16 until the debt was paid in full. However, S.B. Management allegedly never followed through on 17 that promise. 18 Then in February 2010, MERS transferred all beneficial interest under the deed of 19 trust to MetLife. MetLife then substituted Defendant UTLS Default Services (“UTLS”) as the 20 trustee under the deed of trust and on April 15, UTLS recorded a notice of trustee sale. 21 Accordingly, on June 17, UTLS sold Claros’ home to MetLife at a trustee sale. Metlife 22 subsequently transferred the property to Fannie Mae, which currently holds legal title to the home. 23 On October 14, 2010, Claros filed a complaint asserting two claims under the Truth 24 in Lending Act (“TILA”), 15 U.S.C. § 1601, et seq., one claim under NRS § 107.080, and one 25 wrongful foreclosure claim. Each claim appears to have been asserted against each Defendant. 26 /// AO 72 (Rev. 8/82) 2 1 Defendants MERS, UTLS, Fannie Mae, LBPS, MetLife and First Horizon subsequently filed 2 motions to dismiss. For the reasons discussed below, the Court grants Defendants’ motions. 3 4 DISCUSSION I. Standard of Review 5 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 6 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short 7 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8 8(a)(2). While Rule 8 does not require detailed factual allegations, it demands “more than labels 9 and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. 10 Iqbal, 129 S. Ct. 1937, 1949 (2009). “Factual allegations must be enough to rise above the 11 speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint 12 must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 13 129 S. Ct. at 1949 (internal citation omitted). In Iqbal, the Supreme Court recently clarified the two-step approach district courts 14 15 are to apply when considering motions to dismiss. First, a district court must accept as true all 16 well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the 17 assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only 18 by conclusory statements, do not suffice. Id. at 1949. Second, a district court must consider 19 whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A 20 claim is facially plausible when the plaintiff’s complaint alleges facts that allows the court to draw 21 a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where 22 the complaint does not permit the court to infer more than the mere possibility of misconduct, the 23 complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal 24 quotation marks omitted). When the claims in a complaint have not crossed the line from 25 conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570. 26 /// AO 72 (Rev. 8/82) 3 1 II. Analysis 2 A. 3 TILA requires creditors to disclose certain information about the terms of a loan to TILA 4 the prospective borrower. See, 15 U.S.C. §§ 1631–1632, 1638; 12 C.F.R. § 226.17. A creditor 5 who fails to comply with TILA’s requirements is liable to the borrower for damages. 15 U.S.C. 6 § 1640(a). However, damages claims under TILA must be brought within one year from the date 7 of the occurrence of the violation (i.e., closing). Furthermore, TILA also provides borrowers with 8 the right to rescind a mortgage transaction under certain parameters. 15 U.S.C. § 1635(a). 9 However, the borrowers right of recission must be exercised within three years after the date of the 10 consummation of the transaction (i.e., closing) or before the property in question is sold, 11 whichever occurs first. 15 U.S.C. § 1635(f). Finally, the remedy of recission is available only 12 where a borrower is willing and able to tender the balance on the promissory note. Yamamoto v. 13 Bank of N.Y., 329 F.3d 1167, 1173 (9th Cir. 2003). 14 Claros seeks both damages and recission under TILA. However, the loan in 15 question closed in November 2004 and Claros commenced this action in October 2010—more 16 than six years later. Therefore, Claros’ TILA claim fails under the statute of limitations (his 17 damages claim expired in November 2005 and his recission claim expired in November 2007). 18 Claros’ TILA claim also fails because he has not alleged that he is willing and able to tender the 19 remaining balance on his debt. Accordingly, the Court dismisses Claros’ first and second causes 20 of action. 21 B. 22 “An action for the tort of wrongful foreclosure will lie if the trustor or mortgagor Wrongful Foreclosure 23 can establish that at the time the power of sale was exercised or the foreclosure occurred, no 24 breach of condition or failure of performance existed on the mortgagor’s or trustor’s part which 25 would have authorized the foreclosure or exercise of the power of sale.” Collins v. Union Fed. 26 Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983). Claros’ wrongful foreclosure claim fails AO 72 (Rev. 8/82) 4 1 because at the time of foreclosure he was in breach of the terms of the deed of trust. Therefore, the 2 Court dismisses Claros’ third cause of action. 3 C. 4 NRS § 107.080 requires, among other things, the trustee or beneficiary of a deed of 5 trust to record a notice of default and election to sell the property subject to the deed of trust before 6 that property is sold. Section 107.080(3) further requires the trustee to mail a copy of the notice of 7 default and election to sell to the trustor (i.e., the debtor), before the subject property is sold. A 8 sale made pursuant to § 107.080 may be declared void if the trustee or beneficiary does not 9 substantially comply with these requirements. 10 NRS § 107.080 Claros alleges that the Defendants violated NRS § 107.080(3) by failing to properly 11 notify him of the trustee’s sale. However, as discussed below, the Court takes judicial notice of 12 the “Notice of Breach and Default and of Election to Cause Sale of Real Property Under Deed of 13 Trust,” which was recorded on April 24, 2009, and substantially complies with NRS § 107.080. In 14 addition, Claros does not allege that Defendants failed to mail this document to him. Therefore, 15 Claros fails to allege sufficient facts for this claim to be plausible. Accordingly, the Court 16 dismisses Claros’ fourth cause of action. 17 III. Judicial Notice 18 Pursuant to Rule 201(b) of the Federal Rules of Evidence, a court may take judicial 19 notice of facts that are not subject to reasonable dispute because they are “(1) generally known 20 within the territorial jurisdiction of the trial court or (2) capable of accurate and ready 21 determination by resort to sources whose accuracy cannot reasonably be questioned.” Because the 22 “Notice of Breach and Default and of Election to Cause Sale of Real Property Under Deed of 23 Trust” (Dkt. #10, Ex. F, Mot. to Dis.) was recorded in the office of the Clark County Recorder it is 24 capable of accurate and ready determination. Therefore, the Court takes judicial notice of that 25 document. 26 /// AO 72 (Rev. 8/82) 5 1 CONCLUSION 2 Accordingly, and for good cause appearing, 3 IT IS HEREBY ORDERED that MERS’ Motion to Dismiss (#10) is GRANTED. 4 IT IS FURTHER ORDERED that Fannie Mae and LBPS’ Motion to Dismiss (#21) 5 6 7 is GRANTED. IT IS FURTHER ORDERED that MetLife and First Horizon’s Motion to Dismiss (#38) is GRANTED. 8 The Clerk of Court is instructed to close the case. 9 Dated: March 24, 2011 10 ____________________________________ ROGER L. HUNT Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev. 8/82) 6
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