Benito et al v. Vericrest Financial, Inc. et al

Filing 25

ORDER Granting 13 MOTION for Judgment on the Pleadings filed by Bank of New York Mellon and Vericrest Financial, Inc. IT IS FURTHER ORDERED that 19 Defendants' Motion for Stay of Litigation and Discovery Proceedings is DENIED as moot. Signed by Judge Philip M. Pro on 10/17/11. (Copies have been distributed pursuant to the NEF - EDS)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 BEATRIZ Q. BENITO and ROBERT R. BENITO, 8 Plaintiffs, 9 10 vs. 11 VERICREST FINANCIAL, INC., et al., 12 Defendants. 13 ) ) ) ) ) ) ) ) ) ) ) ) ) 2:11-CV-00295-PMP-GWF ORDER 14 Before the Court for consideration is Defendant Vericrest Financial, Inc., 15 16 and the Bank of New York Mellon’s Motion for Judgment on the Pleadings (Doc. 17 #13) filed June 21, 2011. Having considered the arguments set forth in this fully 18 briefed motion, and having also considered the arguments of counsel presented at the 19 hearing conducted October 11, 2011, the Court finds that Defendants’ Motion for 20 Judgment on the Pleadings must be granted. In their Complaint, Plaintiffs allege eight separate Causes of Action for (1) 21 22 unfair lending practices; (2) fraud; (3) deceptive trade practices; (4) intentional 23 misrepresentation; (5) negligent misrepresentation; (6) breach of the implied 24 covenant of good faith and fair dealing; (7) breach of contract; and (8) unjust 25 enrichment. 26 /// At the hearing conducted October 11, 2011, Plaintiffs conceded that their 1 2 claims for fraud, intentional misrepresentation and breach of contract are 3 infirm. However, for the reasons set forth in Defendants’ Motion (Doc. #13) and 4 Reply Memorandum (Doc. #18), the Court finds Plaintiffs’ remaining claims also 5 fail. 6 Plaintiffs’ claim for unfair lending practices must fail because the statute 7 upon which Plaintiff relies, N.R.S. 598D.100(1)(b) did not come into effect until 8 after Plaintiffs’ entered the loan at issue. Plaintiffs’ claims for fraud, deceptive trade 9 practices, intentional misrepresentation and negligent misrepresentation all sound in 10 fraud and are not plead with requisite particularity and fail to specify any 11 misrepresentations made by moving Defendants. Plaintiffs’ claim for breach of the 12 covenant of good faith and fair dealing fails because Defendants have no duty to 13 negotiate a loan modification of Plaintiffs nor are there facts giving rise to a special 14 relationship between the Parties which could be deemed to create and implied 15 covenant. Finally, Plaintiffs’ unjust enrichment claim must be dismissed because 16 such a claim is not available where there is an express, written contract that covers 17 the subject matter of the dispute. 18 19 20 IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. #13) is GRANTED and that Plaintiffs’ Complaint is hereby dismissed. IT IS FURTHER ORDERED that Defendants’ Motion for Stay of 21 Litigation and Discovery Proceedings Pending a Determination on Motion of 22 Vericrest Financial, Inc., and the Bank of New York Mellon, as Trustee, for 23 Judgment on the Pleadings (Doc. #19) is DENIED as moot. 24 DATED: October 17, 2011. 25 26 PHILIP M. PRO United States District Judge 2

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