Ball v. SunTrust Mortgage, Inc., et al

Filing 35

ORDER Granting 25 Motion to Dismiss. Aztec Foreclosure Corporation terminated. Signed by Judge Philip M. Pro on 3/22/11. (Copies have been distributed pursuant to the NEF - ASB)

-LRL Ball v. SunTrust Mortgage, Inc., et al

Doc. 35

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *** BRETT J. BALL, Plaintiff, vs.
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2:10-CV-02064-PMP-LRL ORDER

SUNTRUST MORTGAGE, INC.; AZTEC FORECLOSURE 9 CORPORATION; FEDERAL NATIONAL MORTGAGE 10 ASSOCIATION; MORTGAGE ELECTRONIC REGISTRATION 11 SYSTEMS, IND.
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Defendants.

Before the Court for consideration is Defendant Aztec Foreclosure Corporation's fully briefed Partial Motion to Dismiss Plaintiff's Complaint (Conspiracy and Injunctive Relief) filed February 4, 2011 (Doc. #25). By this motion, Defendant Aztec seeks dismissal of Plaintiff's claims of Civil Conspiracy and Injunctive relief as both of these claims are derivative and dependant upon a finding or wrongful foreclosure, which Defendants contend does not exist as a matter of law in this case. The Court agrees. Although the Court must consider the facts alleged in a complaint as true for purposes of evaluating a motion to dismiss, the Court does not assume the truth of legal conclusions alleged by a plaintiff. Here the Court finds Plaintiff's conspiracy claim necessarily fails because Plaintiff does not state a claim for the underlying tort of wrongful foreclosure which was allegedly the object of the unlawful conspiracy alleged. Moreover, because Plaintiff fails to state a claim for

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wrongful foreclosure or conspiracy, Plaintiff's separate claim for injunctive relief similarly fails. Finally, Plaintiff has failed to identify any basis under which he would be entitled to a judgment quieting title to the five properties at issue in this case. IT IS THEREFORE ORDERED that Defendant Aztec Foreclosure's Partial Motion to Dismiss (Doc. #25) is GRANTED, and that each of Plaintiff's remaining claims as to Defendant Aztec are hereby dismissed.

DATED: March 22, 2011.

PHILIP M. PRO United States District Judge

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