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)

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-LRL Ball v. SunTrust Mortgage, Inc., et al Doc. 35 1 2 3 4 5 6 7 8 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. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 2

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