-RJJ Madrigal v. Recontrust Company, N.A., No. 2:2012cv00367 - Document 13 (D. Nev. 2012)
Court Description: ORDER DENYING 7 Plaintiff's Motion to remand. IT IS FURTHER ORDERED that 4 Defendant's Motion to Dismiss is GRANTED. Signed by Judge James C. Mahan on 06/06/2012. (Copies have been distributed pursuant to the NEF - AC)
Download PDF
<![CDATA[
-RJJ Madrigal v. Recontrust Company, N.A. Doc. 13 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 12 13 2:12-CV-367 JCM (RJJ) THELMA S. MADRIGAL, Plaintiff, v. RECONTRUST COMPANY, N.A., et al., Defendants. 14 15 ORDER 16 Presently before the court is defendant ReconTrust Co., N.A.’s motion to dismiss. (Doc. #4). 17 Plaintiff Thelma Madrigal has filed an opposition (doc. #8), to which defendant has responded (doc. 18 #10). Also before the court is plaintiff’s motion to remand. (Doc.#7). Defendant filed a response 19 (doc. #11), to which plaintiff replied (doc. #12). 20 Factual Background 21 The property at issue is located at 5371 Calgary Court, Las Vegas, NV 89118. (Doc. #1, Ex. 22 1). On or about August 2, 2004, Madrigal and her husband signed a promissory note in favor of 23 Greystone Financial Group (“CCSF”), in the principal amount of $550,000.00 (the “loan”). (Doc. 24 #1, Ex. 1). Plaintiff also executed a deed of trust along with the loan, and both were recorded on 25 September 2, 2004, in the Clark County recorder’s office. (Doc. #4, Ex. A). In the deed of trust, 26 Mortgage Electronic Registration System, Inc. (“MERS”) is named as a nominee. (Doc. #4, Ex. A). 27 28 James C. Mahan U.S. District Judge Dockets.Justia.com 1 On or about August 17, 2009, MERS recorded an assignment of deed of trust, assigning the 2 subject of the note of the deed of trust to the Bank of New York fka the Bank of New York as trustee 3 for the certificateholders Cwalt, Inc. (“Mellon”). (Doc. #4, Ex. B). 4 On May 1, 2009, plaintiff defaulted on the loan. (Doc. #1, Ex. A). On or about September 5 10, 2009, Mellon recorded a substitution of trustee to ReconTrust. (Doc. #4, Ex. C). On or about 6 September 14, 2009, ReconTrust recorded a notice of default and election to sell the property. (Doc. 7 #4, Ex. E). 8 On or about January 3, 2012, the foreclosure mediation program issued a certificate allowing 9 the foreclosure to proceed. (Doc. #4, Ex. F). On or about January 23, 2012, ReconTrust recorded a 10 notice of trustee’s sale, indicating a sale date of February 14, 2012, at 10:00 am. (Doc. #4, Ex. G). 11 On or about February 8, 2012, plaintiff filed her complaint. (Doc. #1, Ex. A). On or about February 12 10, 2012, plaintiff filed a lis pendens on the property. (Doc. #4, Ex. H). 13 Plaintiff’s complaint alleges the following: (1) defendant engaged in deceptive business 14 practices and violated NRS § 598; and (2) defendant violated NRS chapter 107. (Doc. #1, Ex. A). 15 Plaintiff alleges that MERS’s status as a nominee does not give it the ability to assign the note and 16 the deed of trust. (Doc. #1, Ex. 1). Plaintiff contends that the assignment of the note has to meet the 17 requirements of the pooling and servicing agreement. (Doc. #1, Ex. 1). Plaintiff seeks declaratory 18 relief, injunctive relief, and attorney’s fees. (Doc. #1, Ex. A). 19 20 Discussion 1. Motion to Remand 21 Plaintiff first argues that the court should realign the parties such that ReconTrust is the 22 plaintiff for purposes of removal. Pursuant to 28 U.S.C. § 1441(a), only defendants have the right 23 to remove a case from state court to federal court. Thus, if the court realigns the parties, as the 24 plaintiff ReconTrust would not have the right to remove the case. 25 In support of her assertion that the court should realign the parties, plaintiff cites several 26 cases, including two United States Supreme Court cases: Chicago, R.I & P.R. Co. v. Stude, 346 U.S. 27 574 (1954) and Mason City & Ft. D.R. Co. v. Boynton, 204 U.S. 570 (1907). The court realigned 28 James C. Mahan U.S. District Judge -2- 1 the parties in those cases because the relevant state law classified the parties in a manner contrary 2 to federal law; the court held that federal law determines the identities of the plaintiff and defendant 3 for removal purposes. See Stude, 346 U.S. at 580. 4 The cases are inapposite. Here, plaintiff instituted the case in state court. The complaint asks 5 the court to enjoin any foreclosure and award damages. Thus, plaintiff has acted as a plaintiff 6 throughout the course of this case. It would be inappropriate to realign the parties, and the court 7 declines to do so. 8 Second, plaintiff argues that the $75,000 amount in controversy requirement has not been 9 met. Specifically, plaintiff notes that the complaint only seeks recovery in excess of $10,000. 10 Further, plaintiff argues that the injunctive relief claims do “not amount to a monetary award.” 11 “In actions seeking declaratory or injunctive relief, it is well established that the amount in 12 controversy is measured by the value of the object of the litigation.” Cohn v. Petsmart, Inc., 281 13 F.3d 837, 841 (9th Cir. 2002). In this case, the loan at issue is for $550,000. Therefore, the amount 14 in controversy requirement is met. Accordingly, the court declines to remand this case to state court. 15 2. Motion to Dismiss 16 (a) 17 A court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can 18 be granted.” FED. R. CIV. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain 19 statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); Bell 20 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual 21 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements 22 of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Papasan v. Allain, 478 23 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise above the speculative level.” 24 Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient 25 factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 26 (internal citation omitted). Legal Standard 27 28 James C. Mahan U.S. District Judge -3- 1 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when 2 considering motions to dismiss. First, the court must accept as true all well-pled factual allegations 3 in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. 4 Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not 5 suffice. Id. at 1949. Second, the court must consider whether the factual allegations in the complaint 6 allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's 7 complaint alleges facts that allows the court to draw a reasonable inference that the defendant is 8 liable for the alleged misconduct. Id. at 1949. Where the complaint does not permit the court to 9 infer more than the mere possibility of misconduct, the complaint has “alleged – but not shown – that 10 the pleader is entitled to relief.” Id. (internal quotations omitted). When the claims in a complaint 11 have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. 12 Twombly, 550 U.S. at 570. 13 (b) 14 Analysis i. Deceptive Business Practices and Violation of §§ 598 et. seq. 15 Plaintiff claims that defendant’s deceptive conduct beached the obligations under NRS §§ 16 598, et. seq., including, but not limited to: NRS § 598.0915(5), NRS § 598.0915(15), and NRS § 17 598.092(8). 18 Nevada Revised Statutes § 598.0915 and § 598.092 deal with goods and services, not real 19 estate. See NRS § 598.0915(1)-(15) (2011) (describing deceptive trade practices dealing with goods 20 or services); see also NRS § 598.092(8) (2011) (describing deceptive trade practices dealing with 21 goods or services); Reyna v. Wells Fargo Bank, N.A., No. 2:10-cv-01730-KJD-RJJ, 2011 WL 22 2690087, at *9 (D. Nev. July 11, 2011) (finding that NRS § 598 only applies to goods and services 23 and not real estate transactions); Alexander v. Aurora Loan Service, No. 2:09-cv-1790-KJD-LRL, 24 2010 WL 2773796, at *2 (D. Nev. July 8, 2012) (finding that NRS § 598 does not provide relief for 25 claims that deal with real estate transactions because NRS § 598 is for the sale of goods and 26 services); Parker v. Greenpoint Mortgage Funding, No. 3:11-cv-00039-ECR-RAM, 2011 WL 27 2923949, at *6 (D. Nev. July 15, 2011) (finding that NRS 598 does not cover a mortgage foreclosure 28 James C. Mahan U.S. District Judge -4- 1 because this activity is not considered as conducting business in the state). Therefore, these statutes 2 do not apply to the present case. 3 In alleging fraud or mistake, a party must state with particularity the circumstances 4 constituting fraud or mistake. FED. R. CIV. P. 9(b). To meet this standard, plaintiff must present 5 details regarding the “time, place, and manner of each act of fraud, plus the role of each defendant 6 in each scheme.” Lancaster Com. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 7 1991). Plaintiff’s complaint must put the defendant on notice of the particular misconduct that 8 defendant is alleged to have committed so that defendant can properly defend against all allegations. 9 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1104-05 (9th Cir. 2003). 10 Plaintiff’s complaint states that defendant engaged in deceptive business practices by 11 preparing and executing false documents. However, the complaint fails to plead with particularity. 12 (Doc. #1, Ex. A). The complaint does not indicate who engaged in which deceptive business 13 practices. The complaint does not state a time, place, or manner in which the false documents were 14 produced. Plaintiff alleges that defendant engaged in these practices, but does not plead this claim 15 with particularity. (Doc. #1, Ex. A). 16 17 18 Accordingly court dismisses plaintiff’s deceptive business practices and violation of NRS §§ 598 claims. ii. Violation of NRS Chapter 107 19 The lender is allowed to make MERS a nominee in order to secure the note. Roberts v. 20 McCarthy, 2011 WL 1363811, at *4 (D. Nev. Apr. 11, 2011). Under NRS § 107.080, acting as the 21 nominee, MERS is able to substitute a trustee. Id. 22 Plaintiff argues that defendant failed to comply with the requirements of NRS § 107. Under 23 NRS 107.028(4), “A beneficiary of recording may replace its trustee with another trustee. The 24 appointment of a new trustee is not effective until the substitution of trustee is recorded in the office 25 of the recorder of the county in which the real property is located.” NRS 107.028(4). 26 MERS was the original beneficiary under the deed of trust. (Doc. #4, Ex. A). MERS recorded 27 the substitution of trustee on or about September 10, 2009, making ReconTrust the new trustee. 28 James C. Mahan U.S. District Judge -5- 1 (Doc. #4, Ex. C). This document was properly recorded with the county recorder’s office. (Doc. #4, 2 Ex. C). Pursuant to NRS § 107.028(4), the status of trustee becomes effective once the substitution 3 agreement is recorded, which occurred on September 10, 2009. (Doc. #4, Ex. C). 4 Furthermore, under NRS § 107.080(1), “Except as otherwise provided in NRS 106.210, 5 107.085 and 107.086, if any transfer in trust of any estate in real property is made after March 29, 6 1927, to secure the performance of an obligation or the payment of any debt, a power of sale is 7 hereby conferred upon the trustee to be exercised after a breach of the obligation for which the 8 transfer is security.” NRS § 107.080. 9 The note indicates that the note is a security instrument. (Doc. #8). On or about May 1, 2009, 10 plaintiff defaulted on her loan. (Doc. #8). ReconTrust was created as the substitute trustee and 11 therefore had authority to secure performance of the obligation or the payment of any debt through 12 the power of sale. (Doc. #4, Ex. C). NRS § 107.028. Plaintiff does not deny that she is in default. 13 (Doc. #1, Ex. 1). As the trustee, ReconTrust was authorized to institute foreclosure proceedings. 14 (Doc. #8). 15 16 17 Defendant has the authority to collect a debt as a trustee. Therefore, plaintiff’s chapter 107 claims are dismissed. iii. Expunge Lis Pendens 18 19 20 Pursuant to NRS 14.015(3), the party who recorded the notice “must establish to the satisfaction of the court . . . [t]hat the party . . . is likely to prevail in the action.” 21 Here, plaintiff has not demonstrated that she is likely to prevail in the action. The court has 22 dismissed all claims in the complaint for failure to state a claim upon which relief can be granted. 23 Accordingly, plaintiff has not established a likelihood of success. NRS 14.015(3). 24 iv. Declaratory relief, injunctive relief and attorney’s fees 25 A claim for declaratory relief is a remedy, not a cause of action. See Stock West, Inc v. 26 Confederated tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th. Cir. 1989). The 27 declaratory relief remedy derives from the substantive claims for relief. Roberts v. McCarthy, 2011 28 James C. Mahan U.S. District Judge -6- 1 WL 1363811, at *4 (D. Nev. Apr. 11, 2011). Similarly, injunctive relief is a remedy, not an 2 independent cause of action. Alandia v. US Bank, 2009 WL 4611442, at *3 (d. Nev. 2009). If the 3 substantive claim fail, then the claims for declaratory and injunctive relief also fail. 4 As discussed in this order, plaintiff’s substantive claims fail to state a claim upon which relief 5 can be granted. Therefore, plaintiff’s claims for declaratory and injunctive relief and attorney’s fees 6 also fail. 7 Accordingly, 8 9 10 11 12 13 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion to remand (doc. #7) be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that defendant’s motion to dismiss (doc. #4) be, and the same hereby is, GRANTED. DATED June 6, 2012. 14 15 16 NITED STATES I D JUD UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -7-
]]>
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.
