-VCF Ades et al v. Citi Mortgage, Inc. et al, No. 2:2010cv02104 - Document 38 (D. Nev. 2012)

Court Description: ORDER Denying 28 Plaintiffs' Motion for District Judge to Reconsider 25 Order on Motion to Dismiss and Granting 31 Defendants' to Dismiss. Plaintiffs Amended Complaint is dismissed as to all Defendants. The Clerk shall enter judgment accordingly and close the case. Case terminated. Signed by Judge Gloria M. Navarro on 12/26/2012. (Copies have been distributed pursuant to the NEF - AC)

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-VCF Ades et al v. Citi Mortgage, Inc. et al Doc. 38 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 7 8 9 ELY J. ADES; and MARSHA ADES, ) ) Plaintiffs, ) vs. ) ) CITI MORTGAGE, INC.; MORTGAGE ) ELECTRONIC REGISTRATION SYSTEM, ) ) Defendants. ) Case No.: 2:10-cv-02104-GMN-VCF ORDER 10 11 Before the Court is the Motion to Dismiss (ECF No. 31) filed by Defendants 12 CitiMortgage, Inc. (“CitiMortgage”) and Mortgage Electronic Registration Systems, Inc. 13 (“MERS”) (collectively, “Defendants”). Also before the Court, is the Motion to Reconsider 14 (ECF No. 28) filed by Plaintiffs, Ely Ades and Marsha Ades, who are representing themselves 15 pro se. 16 I. BACKGROUND 17 This action arises out of the mortgage loans and deeds of trust on the property located at 18 3661 Seneca Circle, Las Vegas, NV, APN#: 162-14-212-046 (“the property”). Plaintiffs 19 originally filed suit in state court on November 12, 2010, and the action was removed to this 20 Court. (ECF No. 1.) Previously, the Court granted Defendants’ motion to dismiss and gave 21 Plaintiffs leave to file an Amended Complaint as to their TILA, Fraud and RESPA claims. 22 (Order, Sept. 20, 2011.) 23 II. LEGAL STANDARD 24 Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 25 that fails to state a claim upon which relief can be granted. See North Star Int’l. v. Arizona Page 1 of 6 Dockets.Justia.com 1 Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss 2 under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the 3 complaint does not give the defendant fair notice of a legally cognizable claim and the grounds 4 on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering 5 whether the complaint is sufficient to state a claim, the Court will take all material allegations 6 as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. 7 Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 8 9 The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 10 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action 11 with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a 12 violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 13 Twombly, 550 U.S. at 555) (emphasis added). 14 A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b) 15 for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino 16 Police Dept., 530 F.3d 1124, 1129 (9th Cir.2008). Rule 8(a)(2) requires that a plaintiff's 17 complaint contain “a short and plain statement of the claim showing that the pleader is entitled 18 to relief.” Fed. R. Civ. P. 8(a)(2). “Prolix, confusing complaints” should be dismissed because 19 “they impose unfair burdens on litigants and judges.” McHenry v. Renne, 84 F.3d 1172, 1179 20 (9th Cir.1996). Mindful of the fact that the Supreme Court has “instructed the federal courts to 21 liberally construe the ‘inartful pleading’ of pro se litigants,” Eldridge v. Block, 832 F.2d 1132, 22 1137 (9th Cir. 1987), the Court will view Plaintiffs’ pleadings with the appropriate degree of 23 leniency. 24 25 “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the Page 2 of 6 1 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard 2 Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, 3 “documents whose contents are alleged in a complaint and whose authenticity no party 4 questions, but which are not physically attached to the pleading, may be considered in ruling on 5 a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for 6 summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule 7 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay 8 Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers 9 materials outside of the pleadings, the motion to dismiss is converted into a motion for 10 summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th 11 Cir. 2001). 12 If the court grants a motion to dismiss, it must then decide whether to grant leave to 13 amend. The court should “freely give” leave to amend when there is no “undue delay, bad 14 faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing party by 15 virtue of . . . the amendment, [or] futility of the amendment . . . .” Fed. R. Civ. P. 15(a); Foman 16 v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear 17 that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow 18 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 19 III. DISCUSSION 20 For the reasons discussed in Defendants’ motion, the Court’s prior Order, and as 21 explained below, the Court finds that Plaintiffs’ Amended Complaint must be dismissed for 22 failure to state a legally cognizable claim against Defendants. 23 A. TILA 24 As discussed by the Court in its previous Order, the Truth in Lending Act (“TILA”) was 25 enacted in 1968 “to assure a meaningful disclosure of credit terms so that the consumer will be Page 3 of 6 1 able to compare more readily the various credit terms available to him and avoid the 2 uninformed use of credit.” 15 U.S.C. § 1601(a). TILA provides a one-year statute of 3 limitations period for claims of civil damages beginning “from the date on which the first 4 regular payment of principal is due under the loan.” 15 U.S.C. § 1640(e). However, equitable 5 tolling is available to stay the statute of limitations if the plaintiff has been prevented from 6 discovering any potential TILA claims against defendants. King v. California, 784 F.2d 910, 7 915 (9th Cir. 1986). Here, Plaintiffs’ Amended Complaint does not allege that Plaintiffs were prevented from 8 9 discovering any potential TILA claims against defendants, only that they did not discover the 10 alleged violation until they applied for a Veterans Administration loan in January 2009. Since 11 Plaintiffs filed suit in November 2010, even if equitable tolling applied, the statute of 12 limitations would have expired as of January 2010. Accordingly, the Court must dismiss 13 Plaintiffs’ cause of action for violations of TILA. 14 B. Fraud 15 In its prior Order, the Court dismissed Plaintiffs’ claim for fraud because of a failure to 16 plead facts with the required specificity under Federal Rule of Civil Procedure 9(b) and because 17 of a failure to allege the date upon which they discovered the alleged fraud. In their Amended 18 Complaint, Plaintiffs appear to allege that they discovered the fraud in January 2009, when they 19 applied for a Veterans Administration loan, which would bring the claim within the three-year 20 statute of limitations. See Nev. Rev. Stat. § 11.190(3)(d). However, Plaintiffs have still again 21 failed to allege the details of the alleged fraud with sufficient specificity to satisfy the Rule 9(b) 22 pleading requirements. Accordingly, the Court must dismiss Plaintiffs’ cause of action for 23 fraud. 24 C. RESPA 25 In its prior Order, the Court dismissed Plaintiffs’ claim for RESPA violations with leave Page 4 of 6 1 to amend if the alleged dates of violation are within the three-year statute of limitations. In 2 their Amended Complaint, Plaintiffs failed to allege that any RESPA violation occurred within 3 three years of Plaintiffs’ suit. The Court’s liberal construction of Plaintiffs’ Amended 4 Complaint yields only February 2007 as a possible date for this violation, which is more than 5 three years before Plaintiffs filed suit in November 2010. Accordingly, this cause of action for 6 RESPA violations must be dismissed as well. 7 D. Motion to Reconsider 8 Within Plaintiffs’ Amended Complaint, Plaintiffs requested that the Court reconsider its 9 Order granting the previous motion to dismiss. Plaintiffs argue that the Court erred when it 10 stated in its Order: “Two months later, on November 16, 2006, the release of Loan A was 11 prepared, the property was reconveyed to CMI, and CMI was substituted as trustee in lieu of 12 FATC. (STDR A.) The release was recorded with the Clark County Recorder on February 27, 13 2007. (Id.)” (Order, 2:13-14, ECF No. 25.) Here, the Court does not find that its statement was 14 in error, but recognizes that the abbreviations used by the Court likely contributed to Plaintiffs’ 15 confusion. In the Court’s Order, the abbreviation “STDR A” was used to refer to the 16 Substitution of Trustee & Deed of Reconveyance included in Defendants’ Request for Judicial 17 Notice at Ex. D, ECF No. 7-4, as stated in the Order. (See Order, 2:5.) This Substitution of 18 Trustee & Deed of Reconveyance was signed on November 16, 2006, and was recorded on 19 February 27, 2007. (See Substitution of Trustee & Deed of Reconveyance, Ex. D to Defs.’ Req. 20 Jud. Notice, ECF No. 7-4.) In that document, Loan A, which was secured by the Deed of Trust 21 dated April 20, 2006, was deemed “fully paid and satisfied”, and the property was reconveyed 22 “to the person or persons legally entitled thereto.” (See id. at Exs. B, D, ECF Nos. 7-2, 7-4.) 23 Plaintiffs next request reconsideration based upon their pro se status. Although the 24 Court has sympathy for Plaintiffs’ difficulties and the challenges of pursuing litigation without 25 attorney representation, the Court may not grant reconsideration of its rulings on this basis in Page 5 of 6 1 this case. After two attempts, Plaintiffs’ allegations still do not state any valid legal claims 2 against Defendants and the Court cannot find any basis on which to find that further 3 amendment would not be futile. Accordingly, Plaintiffs’ Amended Complaint will be 4 dismissed without leave to amend further, and this case will be closed. 5 IV. CONCLUSION 6 IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 28) is DENIED. 7 IT IS FURTHER ORDERED that the Motion to Dismiss (ECF No. 31) is 8 GRANTED. Plaintiffs’ Amended Complaint is dismissed as to all Defendants. The Clerk 9 shall enter judgment accordingly and close the case. 10 DATED this 26th day of December, 2012. 11 12 13 14 ___________________________________ Gloria M. Navarro United States District Judge 15 16 17 18 19 20 21 22 23 24 25 Page 6 of 6

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