-RJJ Vargas v. Wells Fargo Bank et al, No. 2:2012cv00145 - Document 30 (D. Nev. 2012)
Court Description: ORDER Granting 7 MOTION to Dismiss filed by Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank N.A. Plaintiff's Complaint is Dismissed without prejudice. Plaintiff's Amended Complaint due by 1/3/2013. The 20 MOTION for Hearing is Denied as moot. Signed by Judge Gloria M. Navarro on 12/18/2012. (Copies have been distributed pursuant to the NEF - SLD)
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-RJJ Vargas v. Wells Fargo Bank et al Doc. 30 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Maria Vargas, 4 5 6 7 8 9 10 11 12 ) ) Plaintiff, ) vs. ) ) Wells Fargo Bank, doing business as ) America’s Servicing Company, and as ) successor in interest for First National Bank of ) Arizona; Mortgage Electronic Registration ) Systems, Inc., a Delaware Corporation; ) National Default Servicing Corporation, a ) foreign corporation; Does 1 through 100 ) inclusive, ) ) Defendants. ) Case No.: 2:12-cv-00145-GMN-RJJ ORDER 13 This action was brought by pro se Plaintiff Maria Vargas. Before the Court is the 14 Motion to Dismiss (ECF No. 7) filed by Defendants Mortgage Electronic Registration Systems, 15 Inc. (“MERS”) and Wells Fargo Bank, N.A., (“Wells Fargo”) incorrectly named as “Wells 16 Fargo Bank,” doing business as America’s Servicing Company and as successor in interest for 17 First National Bank of Arizona (“Wells Fargo”) (collectively, “Defendants”)1. Plaintiff filed an 18 untimely Response (ECF No. 13) and Defendants filed a Reply (ECF No. 16). 19 I. BACKGROUND 20 Plaintiff filed her Complaint in state court relating to foreclosure proceedings initiated 21 against the property at 8985 South Durango Drive, Unit #1157, Las Vegas, Nevada, 89113, 22 APN#: 176-20-514-057 (“the property”). (ECF No. 1.) Defendants removed the action to this 23 Court. (Id.) In her Complaint, Plaintiff alleges six causes of action: (1) Declaratory Relief; (2) 24 25 1 Defendant National Default Servicing Corporation was never properly served and was dismissed by the Court on July 11, 2012. (ECF No. 23.) Page 1 of 6 Dockets.Justia.com 1 Slander of Title; (3) Demand for Accounting; (4) Contractual Breach of Implied Covenant of 2 Good Faith and Fair Dealing; (5) Fraud; and (6) Quiet Title. (Id.) 3 In 2006, Plaintiff obtained a loan from First National Bank of Arizona, secured by a 4 Deed of Trust on the property. (Deed of Trust, Ex. 1 to Defs.’ RJN, ECF No. 8.) The Trustee 5 was Chicago Title, and MERS was named beneficiary solely as nominee for the Lender and its 6 successors and assigns. (Id.) 7 A Notice of Default was recorded March 4, 2009 by Chicago Title - ServiceLink, as 8 agent for National Default Servicing Corporation, as agent for America’s Servicing Company, 9 and on behalf of the beneficiary. (Id. at Ex. 3.) The Notice of Default stated that as of March 4, 10 2009, Plaintiff was in default by $11,442.00. (Id.) After two Notices of Trustee’s Sale were 11 recorded, the Notice of Default was rescinded by a Notice of Rescission that was recorded 12 January 28, 2010. (Id at Exs. 5-7.) 13 On May 21, 2009, National Default Servicing Corporation assigned the beneficial 14 interest in the Deed of Trust to HSBC Bank USA, National Association (“HSBC Bank”). Also 15 on May 21, 2009, on behalf of HSBC Bank, Wells Fargo substituted National Default Servicing 16 Corporation as Trustee. (Id. at Ex. 2.) 17 II. LEGAL STANDARD 18 Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 19 that fails to state a claim upon which relief can be granted. See North Star Int’l. v. Arizona 20 Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss 21 under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the 22 complaint does not give the defendant fair notice of a legally cognizable claim and the grounds 23 on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering 24 whether the complaint is sufficient to state a claim, the Court will take all material allegations 25 as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Page 2 of 6 1 2 Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The Court, however, is not required to accept as true allegations that are merely 3 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 4 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action 5 with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a 6 violation is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 7 Twombly, 550 U.S. at 555) (emphasis added). 8 9 A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino 10 Police Dept., 530 F.3d 1124, 1129 (9th Cir.2008). Rule 8(a)(2) requires that a plaintiff's 11 complaint contain “a short and plain statement of the claim showing that the pleader is entitled 12 to relief.” Fed. R. Civ. P. 8(a)(2). “Prolix, confusing complaints” should be dismissed because 13 “they impose unfair burdens on litigants and judges.” McHenry v. Renne, 84 F.3d 1172, 1179 14 (9th Cir.1996). Mindful of the fact that the Supreme Court has “instructed the federal courts to 15 liberally construe the ‘inartful pleading’ of pro se litigants,” Eldridge v. Block, 832 F.2d 1132, 16 1137 (9th Cir. 1987), the Court will view Plaintiff’s pleadings with the appropriate degree of 17 leniency. 18 “Generally, a district court may not consider any material beyond the pleadings in ruling 19 on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the 20 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard 21 Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, 22 “documents whose contents are alleged in a complaint and whose authenticity no party 23 questions, but which are not physically attached to the pleading, may be considered in ruling on 24 a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for 25 summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule Page 3 of 6 1 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay 2 Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers 3 materials outside of the pleadings, the motion to dismiss is converted into a motion for 4 summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th 5 Cir. 2001). 6 If the court grants a motion to dismiss, it must then decide whether to grant leave to 7 amend. The court should “freely give” leave to amend when there is no “undue delay, bad 8 faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing party by 9 virtue of . . . the amendment, [or] futility of the amendment . . . .” Fed. R. Civ. P. 15(a); Foman 10 v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear 11 that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow 12 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 13 III. DISCUSSION 14 Declaratory Relief and Demand for Accounting 15 As discussed below, Plaintiff has failed to properly allege any of her causes of action 16 against Defendants, and the causes of action will be dismissed. Accordingly, Plaintiff’s cause 17 of action for Declaratory Relief and her Demand for Accounting must be dismissed as well. 18 Slander of Title 19 To state a claim for slander of title, Plaintiff must allege that Defendants made false and 20 malicious communications, disparaging to one’s title in land, and causing special damage. See 21 Higgins v. Higgens, 744 P.2d 530, 531 (Nev. 1987). Here, the Court finds that Plaintiff has not 22 alleged facts sufficient to support her claims that Defendants made false and malicious 23 communications causing special damage. Accordingly this cause of action will be dismissed. 24 Contractual Breach of Implied Covenant of Good Faith and Fair Dealing 25 To state a claim for breach of the implied covenant of good faith and fair dealing, Page 4 of 6 1 Plaintiff must allege: (1) Plaintiff and Defendants were parties to an agreement; (2) Defendants 2 owed a duty of good faith to the Plaintiff; (3) Defendants breached that duty by performing in a 3 manner that was unfaithful to the purpose of the contract; and (4) Plaintiff’s justified 4 expectations were denied. See Perry v. Jordan, 900 P.2d 335, 338 (Nev. 1995). Here, Plaintiff 5 has failed to allege sufficient facts supporting her claim that Defendants were parties to the loan 6 origination, or that Defendants owed her a duty of good faith. Accordingly, this cause of action 7 will be dismissed. 8 Fraud 9 To state a claim for fraud, a party must adhere to the heightened pleading standard of 10 Federal Rule of Civil Procedure 9(b). Yourish v. Cal. Amplifier, 191 F.3d 983, 993 (9th Cir. 11 1999). This includes details regarding the “time, place, and manner of each act of fraud, plus 12 the role of each defendant in each scheme.” Lancaster Com. Hosp. v. Antelope Valley Hosp. 13 Dist., 940 F.2d 397, 405 (9th Cir. 1991). Here, Plaintiff has failed to meet this heightened 14 pleading standard with details as to the circumstances of the alleged fraud. Accordingly, this 15 cause of action will be dismissed. 16 Quiet Title 17 Nevada statutes provide that “[a]n action may be brought by any person against another 18 who claims an estate or interest in real property, adverse to the person bringing the action, for 19 the purpose of determining such adverse claim.” Nev. Rev. Stat. § 40.010. “In a quiet title 20 action, the burden of proof rests with the plaintiff to prove good title in himself.” Breliant v. 21 Preferred Equities Corp., 918 P.2d 314, 318 (Nev. 1996). “Moreover, there is a presumption in 22 favor of the record titleholder.” Id. Here, Plaintiff has failed to allege that she is current in her 23 mortgage payments, and has failed to allege that Defendants are currently making any adverse 24 claim. Accordingly, this cause of action will be dismissed. 25 IV. CONCLUSION Page 5 of 6 1 IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 7) is GRANTED. 2 Plaintiff’s Complaint is dismissed without prejudice. If Plaintiff wishes to file an amended 3 Complaint consistent with this Order, she must do so by January 3, 2013. Failure to do so will 4 result in the case being closed. 5 6 7 IT IS FURTHER ORDERED that the Motion for Hearing (ECF No. 20) is DENIED as moot. DATED this 18th day of December, 2012. 8 9 10 11 ___________________________________ Gloria M. Navarro United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 6 of 6
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