Shlesinger v. Bank of America, et al

Filing 35

ORDER that Defendant Bank of Americas Motion to Dismiss 4 is GRANTED. Defendant CTX Mortgage Company, LLCs Motion to Dismiss 25 is GRANTED. Clerk to enter Judgment. Signed by Judge Philip M. Pro on 5/3/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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This action was removed to this Court on December 16, 2011 by

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Defendant Bank of America (Doc. #1). On December 23, 2011, Defendant Bank of

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America filed a Motion to Dismiss Plaintiff’s Complaint (Doc. #4). The Court

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entered an Order (Doc. #14) granting defendant’s motion to dismiss on February 3,

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2012 as a result of Plaintiff’s failure to timely respond thereto. However, after entry

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of the Court’s Order the Parties filed a Stipulation for an Additional Extension of

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Time for Plaintiff to File a Response to Defendant’s Original Motion to Dismiss

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(Doc. #15). On February 17, 2012, the Court entered an Order (Doc. #20) vacating

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the Court’s earlier order granting Defendant’s motion to dismiss and denying

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Defendant’s motion to dismiss without prejudice to renew the motion in the event

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the Parties were unable to resolve the case by settlement.

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GERALD SHLESINGER,
Plaintiff,

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vs.

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BANK OF AMERICA, et al.,
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Defendants.

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2:11-CV-02020-PMP-PAL
ORDER

On March 7, 2012, Plaintiff filed a Response in Opposition to Defendant
Bank of America’s Original Motion to Dismiss (Doc. #23).

On March 8, 2012, Defendant CTX Mortgage Company, LLC filed a

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Motion to Dismiss Plaintiff’s Complaint (Doc. #25) as well as a Joinder (Doc. #27)

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in Defendant Bank of America’s original Motion to Dismiss (Doc. #4).
On March 9, 2012, Plaintiff and Defendant Bank of America filed a Joint

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Status Report (Doc. #26) regarding their efforts to resolve the case by settlement.

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That report indicates that the Parties were continuing to exchange documents in an

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effort to resolve the matter.

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Following additional stipulations to extend time for Defendant Bank of

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America to file a reply memorandum in support of its original motion to dismiss,

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Defendant Bank of America filed a Reply Memorandum (Doc. #34) on April 30,

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2012.
Having now read and considered Defendant Bank of America’s fully

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briefed Motion to Dismiss (Doc. #4) and Defendant CTX Mortgage Company’s

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unopposed Motion to Dismiss Plaintiff’s Complaint (Doc. #25), the Court finds that

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both motions should be granted for the reasons stated in those respective motions.
First, as noted in Defendant Bank of America’s Motion and Reply

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Memorandum, Plaintiff’s Unfair Lending Practices Claim under NRS 589D, is time

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barred by the applicable two year statute of limitations. Next, for the reasons set

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forth in Defendant Bank of America’s motion, Plaintiff fails to state a claim for

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breach of the implied covenant of good faith and fair dealing under Nevada law.

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Next, Plaintiff’s claim for unjust enrichment is infirm because there is an express

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contract in this case. Moreover, Plaintiff’s Complaint fails to state adequate claims

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for negligent and intentional misrepresentation or for fraud. Finally, Plaintiff’s

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claim for declaratory relief must fail because declaratory relief is a remedy not a

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cause of action. In sum, Plaintiff’s Complaint must be dismissed.

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IT IS THEREFORE ORDERED that Defendant Bank of America’s
Motion to Dismiss (Doc. #4) is GRANTED.
IT IS FURTHER ORDERED that Defendant CTX Mortgage Company,
LLC’s Motion to Dismiss (Doc. #25) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall forthwith

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enter judgment in favor of Defendants and against Plaintiff.

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DATED: May 3, 2012.

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PHILIP M. PRO
United States District Judge

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