Rubio v. The Mortgage Outlet et al

Filing 12

ORDER Granting 6 Defendant Residential Credit Solutions, Inc.'s Motion to Dismiss. FURTHER ORDERED that 8 Motion to Expunge Lis Pendens is GRANTED. Signed by Judge James C. Mahan on 8/9/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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2:11-CV-550 JCM (RJJ)

JOSE RUBIO,

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Plaintiff,

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v.

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THE MORTGAGE OUTLET, et al.,

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Defendants.

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ORDER

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Presently before the court is defendant Residential Credit Solutions, Inc.’s (hereinafter:

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“RCS”) motion to dismiss or, in the alternative, for a more definite statement (doc. #6). Also before

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the court is defendant RCS’s motion to expunge lis pendens (doc. #8). Oppositions to each motion

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were due on May 14, 2011, and notices of non-opposition have been filed with the court (docs. # 10

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& 11).

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This action arises out of the plaintiff’s attempts to overturn a foreclosure sale of the subject

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property. Plaintiff defaulted on a loan that was voluntarily entered into for purposes of purchasing

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the subject property. Plaintiff now asserts six claims for relief: (1) declaratory relief; (2) violation

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of the Federal Fair Debt Collection Practices Act; (3) intentional infliction of emotional distress

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(IIED); (4) negligent infliction of emotional distress (NIED); (5) unfair business practices; and (6)

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quiet title (doc. # 1).

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I.

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James C. Mahan
U.S. District Judge

MOTION TO DISMISS (DOC. #6)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

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as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,

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1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a

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complaint pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the

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line between possibility and plausibility of entitlement to relief.’” Id. (citing Twombly, 550 U.S. at

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557). However, where there are well pled factual allegations, the court should assume their veracity

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and determine if they give rise to relief. Id. at 1950.

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Nevada LR 7-2(d) provides in pertinent part that “[t]he failure of an opposing party to file

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points and authorities in response to any motion shall constitute a consent to the granting of the

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motion.” However, failure to file an opposition to a motion to dismiss is not cause for automatic

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dismissal. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). “Before dismissing the action, the

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district court is required to weigh (1) the public’s interest in expeditious resolution; (2) the court’s

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need to manage its docket; (3) the risk of prejudice; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions.” Id. (quoting Henderson v.

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Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).

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Here, those factors weigh toward dismissal. The public’s interest in expeditious resolution

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of litigation, the court’s need to manage its docket, and the lack of prejudice weigh in favor of

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granting the motion to dismiss. Additionally, the motion has merit.

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A.

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Declaratory relief is a remedy and not a cause of action. See Stock West, Inc. v. Confederated

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Tribes of Coville Reservations, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore, this court cannot

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determine whether the plaintiff is entitled to such relief at this time. See Id.

First Claim for Relief – Declaratory Relief

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B.

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The Fair Debt Collection Practices Act (FDCPA) provides that activities undertaken in

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connection with a nonjudicial foreclosure do not constitute debt collection under the FDCPA. See

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Diessner v. Mortgage Elec. Reg. Sys., Inc., 618 F. Supp. 2d 1184, 1188-89. Plaintiff’s second claim

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against RCS must be dismissed because the defendants have undertaken activities connected with

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the nonjudicial foreclosure sale of the property at issue, and they are not considered “debt collectors”

Second Claim for Relief – Violation of Federal Fair Debt Collection Practices

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James C. Mahan
U.S. District Judge

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under the FDCPA.

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C.

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The elements of a claim for IIED are: (1) extreme and outrageous conduct with either the

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intention of, or reckless disregard for, causing emotional distress; (2) the plaintiff’s having suffered

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extreme emotional distress; and (3) actual or proximate causation. Star v. Rabello, 97 Nev. 124, 125

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(1981). In order to be liable for IIED or NIED, there must be an underlying tort committed by the

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defendant which would give rise to the claim. Shoen v. Anerco, Inc., 111 Nev. 735 (1995).

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“Foreclosure, particularly where there is no legally sufficient claim that it was wrongful, is

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insufficient to amount to an actionable claim for NIED.” Simon v. Bank of America, N.A., 2010 WL

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2609436, at *12 (D. Nev.).

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Third and Fourth Claims for Relief – IIED and NIED

Here, there is no evidence that the foreclosure was wrongful or that there was any other
underlying tort. Therefore, the third and fourth claims are dismissed.

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D.

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RCS merely purchased the property at foreclosure sale. Plaintiff does not assert any unfair

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Fifth Claim for Relief – Unfair Business Practices

action performed by RCS. Therefore, the fifth claim for relief is dismissed.

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E.

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An action to quiet title is an equitable proceeding in which a party seeks to settle a dispute

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over ownership of property or to remove a cloud upon his title to the property. MacDonald v.

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Krause, 77 Nev. 312, 317–18 (Nev. 1961). A widely accepted rule in such actions is that the party

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must tender the undisputed amount due and owed to challenge the validity of the sale. See, e.g.,

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Abdallah v. United Savings Bank, 43 Cal. App. 4th 1101, 1109 (Cal. Ct. App. 1996). In essence, he

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who seeks equity must do equity. See McQuiddy v. Ware, 87 U.S. 14, 19 (1873).

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Sixth Claim for Relief – Quiet Title

Plaintiff’s claim must be dismissed because the plaintiff has defaulted on his loan, and thus,

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has not done equity. Therefore, the sixth claim for relief is dismissed.

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II.

MOTION TO EXPUNGE LIS PENDENS (DOC. #8)

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Pursuant to NRS § 14.015, a lis pendens must be expunged if upon 15 days’ notice, the party

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that recorded the lis pendens fails to establish to the satisfaction of the court all of the following

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James C. Mahan
U.S. District Judge

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elements: “(a) the action is for the foreclosure of a mortgage upon the real property described in the

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notice or affects the title or possession of the real property described in the notice; (b) the action was

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not brought in bad faith or for an improper motive; © he will be able to perform any conditions

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precedent to the relief sought in the action insofar as it affects the title or possession of the real

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property; and (d) he would be injured by any transfer of an interest in the property before the action

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is concluded.” NRS 14.015 (2). In addition to each of the four elements listed above, the party that

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recorded the lis pendens must also establish: “(a) that he is likely to prevail in the action; or (b) that

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he has a fair chance of success on the merits in the action and the injury . . . would be sufficiently

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serious that the hardship on him in the event of a transfer would be greater than the hardship on the

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defendant resulting from the notice of pendency, and that if he prevails he will be entitled to relief

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affecting the title or possession of the real property.” NRS 14.015 (3).

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As the court held that there were no viable claims in the complaint, plaintiff’s lis pendens
must be expunged.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Residential

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Credit Solutions, Inc.’s motion to dismiss (doc. #6) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that defendant Residential Credit Solutions, Inc.’s motion to
expunge lis pendens (doc. #8) be, and the same hereby is, GRANTED.
DATED August 9, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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