Pineda v. Bank of America Home Loans Servicing LP et al

Filing 18

ORDER Granting 6 Motion to Dismiss. The Clerk of Court is instructed to close the case. Signed by Judge Roger L. Hunt on 5/20/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LUISITO PINEDA,

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Plaintiff,
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vs.
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BANK OF AMERICA HOME LOANS;
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RECONTRUST COMPANY; BANK OF NEW )
YORK MELLON; AND MORTGAGE
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ELECTRONIC REGISTRATION SYSTEMS, )
INC.
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Defendants.
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_______________________________________)

Case No.: 2:10-cv-01958-RLH-PAL
ORDER
(Motion to Dismiss–#6)

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Before the Court is Defendants BAC Home Loans Servicing, LP, improperly

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named as Bank of America Home Loans (“BAC”), Bank of New York Mellon, Mortgage

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Electronic Registration Systems, Inc. (“MERS”), and ReconTrust Company, N.A.’s Motion to

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Dismiss (#6, filed Nov. 22, 2010), for failure to state a claim. The Court has also considered

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Plaintiff Luisito Pineda’s Opposition (#12, filed Jan. 14, 2011), and Defendants’ Reply (#17, filed

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Feb. 24, 2011).
BACKGROUND

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On December 26, 2006, Pineda entered into a loan agreement with Countrywide

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Home Loans, Inc., to borrow $328,500 and secured the loan with a deed of trust. The deed of trust

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lists MERS as the nominee/beneficiary. Countrywide allegedly sold the note to be securitized.

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Pineda stopped making his mortgage payments and has failed to cure this default. Accordingly,

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Defendants recorded a notice of trustee’s sale but then they postponed the sale.

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Pineda eventually filed suit in Nevada state court and Defendants removed the case

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to this Court. Pineda asserts the following four claims: (1) wrongful foreclosure, (2) civil

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conspiracy, (3) quiet title, and (4) injunctive relief. Upon removal of the case to this Court,

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Defendants filed this motion to dismiss. For the reasons discussed below, the Court grants

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Defendants’ motion.

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DISCUSSION
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Legal Standard
A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short

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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require

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detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic

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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

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(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise

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above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a

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complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its

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face.” Iqbal, 129 S. Ct. at 1949 (internal citation omitted).

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In Iqbal, the Supreme Court recently clarified the two-step approach district courts

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are to apply when considering motions to dismiss. First, a district court must accept as true all

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well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the

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assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only

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by conclusory statements, do not suffice. Id. at 1949. Second, a district court must consider

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whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A

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claim is facially plausible when the plaintiff’s complaint alleges facts that allows the court to draw

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a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where

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the complaint does not permit the court to infer more than the mere possibility of misconduct, the

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complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal

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quotation marks omitted). When the claims in a complaint have not crossed the line from

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conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570.

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II.

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Analysis
A.

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Wrongful Foreclosure
To succeed on a claim for wrongful foreclosure, the plaintiff must show that (1)

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defendant exercised a power of sale or foreclosed on plaintiff’s property and (2) at the time

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defendant exercised a power of sale, there was no breach of a condition or failure of performance

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existing on the plaintiff’s part that would have authorized the foreclosure or exercise of power of

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sale. Collins v. Union Fed. Sav. and Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983). Pineda fails to

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state a claim for wrongful foreclosure because he defaulted on his loan. Furthermore, Pineda does

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not allege that he has cured his default. Pineda, therefore, has not pled facts sufficient to satisfy

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the second element of wrongful foreclosure. Accordingly, the Court dismisses this claim.

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B.

Civil Conspiracy
To succeed on a claim for civil conspiracy, the plaintiff must show that (1)

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defendants acted in concert with the intent to accomplish an unlawful objective for the purpose of

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harming the plaintiff and (2) plaintiff sustained damage as a result of defendants’ conduct.

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Consol. Generator-Nevada, Inc. v. Cummins Engine Co., 971 P.2d 1251, 1256 (Nev. 1999).

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Pineda’s civil conspiracy claim fails because it does not meet Rule 9(b)’s specificity requirement

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for fraud-based allegations. Pineda merely alleges that Defendants “reached an understanding and

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engaged in a sequence of events . . . to commence a wrongful foreclosure” of Pineda’s home.

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These allegations are insufficient to state a claim for civil conspiracy. Kendall v. Visa U.S.A., Inc.,

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518 F.3d 1042, 1047–48 (9th Cir. 2008); Vess v. Ciba-Geigy Corp. U.S.A., 317 F.3d 1097, 1106

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(9th Cir. 2003). Therefore, the Court dismisses this claim.

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C.

Quiet Title

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In Nevada, “[a]n action may be brought by any person against another who claims

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an estate or interest in real property, adverse to the person bringing the action, for the purpose of

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determining such adverse claim.” NRS § 40.010. In a quiet title claim the burden of proof rests

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with the plaintiff to prove good title in himself. Breliant v. Preferred Equities Corp., 918 P.2d 314,

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318 (Nev. 1996). Finally, a defaulting plaintiff cannot quiet title in his property without first

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curing the default and discharging his debt. Aguilar v. Bocci, 114 Cal. Rptr. 91, 92 (Cal. Ct. App.

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1974).

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Pineda seeks to quiet title to his home because Defendants “sold [his] Promissory

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Note to be securitized” and, as such, they do not have a “clear or definable interest in the title to

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the subject property.” (Compl. ¶¶ 71, 75). However, as previously discussed, Pineda has

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defaulted on his loan and has not cured that default. Furthermore, Pineda has not claimed that he

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is ready and willing to discharge the underlying debt. Accordingly, Pineda fails to state a claim to

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quiet title.

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D.

Injunctive Relief
Injunctive relief is not a separate cause of action but a claim for relief. In re Wal-

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Mart Wage & Hour Employment Practices Litigation, 490 F. Supp. 2d 1091, 1130 (D. Nev. 2007).

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Therefore, because the Court has found that Pineda’s other claims fail, his claim for injunctive

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relief also fails. Accordingly, the Court dismisses Pineda’s claim for injunctive relief.

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CONCLUSION

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#6) is

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GRANTED. The Clerk of Court is instructed to close the case.
Dated: May 20, 2011

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____________________________________
ROGER L. HUNT
Chief United States District Judge

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