Tapia v. California Reconveyance Company et al

Filing 34

ORDER Granting with prejudice 14 Motion for Judgment on the Pleadings. Granting 15 Motion to Expunge Lis Pendens. Signed by Judge Miranda M. Du on 8/6/2012. (Copies have been distributed pursuant to the NEF - SLR)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 *** 11 GEORGE TAPIA, Plaintiff, 12 v. 13 14 15 16 17 18 19 CAL-WESTERN RECONVEYANCE CORP., et al., Defendants. Case No. 2:12-cv-00105-MMD-VCF (consolidated with Case. No. 2:12-cv00344-MMD-VCF) ORDER (Plaintiff’s Motion to Stay – dkt. no. 8; Plaintiff’s Motion to Remand – dkt. no. 9; Defendant’s Motion to Dismiss or Motion for Summary Judgment – dkt. no. 12; Defendants’ Motion for Judgment on the Pleadings and to Expunge Lis Pendens – dkt. no. 14; Defendant’s Motion to Expunge Lis Pendens – dkt. no. 15; Defendant’s Motion for Decision – dkt. no. 19). 20 21 22 Before this Court are Plaintiff’s Motion to Stay (Case no. 2:12-cv-344-MMD-VCF 23 (“case no. 344”), dkt. no. 8) and Motion to Remand to State Court (case no. 344, dkt. no. 24 9); Defendants MERS, MERSCORP, and California Reconveyance Corporation’s Motion 25 for Judgment on the Pleadings and to Expunge Lis Pendens (2:12-cv-00105-MMD-VCF 26 (“case no. 105”), dkt. no. 14); Defendant Cal-Western’s Motion to Dismiss or Motion for 27 Summary Judgment (case no. 344, dkt. no. 12), Motion to Expunge Lis Pendens (case 28 no. 105, dkt. no. 15) and Motion for Decision (case no. 344, dkt. no. 19). 1 I. BACKGROUND 2 Plaintiff George Tapia and Donna Tapia, as husband and wife, purchased real 3 property located at 10421 Pacific Sageview Lane, Las Vegas, Nevada (the “Property”) 4 on or about May 19, 2004. (Case no. 105, dkt. no. 14-7.) 1 To finance the purchase of 5 the Property, Plaintiff and Donna Tapia obtained a loan from American Fidelity Mortgage 6 Bankers, Inc., in the amount of $185,600, which was secured by a Deed of Trust (case 7 no. 105, dkt. no. 14-8.) The Deed of Trust names American Fidelity Mortgage Bankers 8 as lender, Old Republic Title as trustee, and Mortgage Electronic Registration Systems, 9 Inc. (“MERS”) as nominee and beneficiary. (Id. at 1.) 10 On January 6, 2005, the Property was conveyed by Plaintiff and Donna Tapia to 11 “George Tapia and Donna Tapia, Trustees of the Tapia Family Trust.” (Case no.105, 12 dkt. no. 14-9.) 13 quitclaim deed which conveyed the Property back to Plaintiff on October 17, 2008 for no 14 consideration. (Case no. 105, dkt. no. 14-10.) Donna Tapia, as Trustee of the Tapia Family Trust, then signed a 15 Plaintiff defaulted on the loan secured by the Deed of Trust by failing to make the 16 payment due on July 1, 2008. (Case no. 105, dkt. no. 14-13.) Plaintiff apparently 17 attempted to modify the loan, but was unsuccessful. (Case no. 105, dkt. no 1-2 at 2.) 18 On October 28, 2008, MERS, as nominee, substituted Cal-Western Reconveyance 19 Corporation (“Cal-Western”) as trustee of the Deed of Trust. (Case no. 105, dkt. no. 14- 20 11.) MERS also assigned all beneficial interest under the Deed of Trust to U.S. Bank, 21 N.A., on October 28, 2008. (Case no. 105, dkt. no. 14-12.) Cal-Western, as trustee, executed a notice of default on October 30, 2008, which 22 23 was recorded on November 3, 2008. (Case no. 105, dkt. no. 14-13.) Because the 24 default under the note secured by the Deed of Trust was not cured, Cal-Western 25 26 27 28 1 Defendants have requested that the Court take judicial notice of attached copies of relevant publicly recorded documents. The Court takes judicial notice of these public records. See Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866 n. 1 (9th Cir. 2004) (the court may take judicial notice of the records of state agencies and other undisputed matters of public record under Fed. R. Evid. 201). 2 1 recorded a notice of trustee’s sale on February, 9, 2009, February 15, 2011, and 2 October 17, 2011. (Case no. 105, dkt. nos. 14-14, 14-15, 14-16.) 3 Plaintiff, proceeding pro se, filed a complaint in the district court for the State of 4 Nevada in Clark County on December 28, 2011 against California Reconveyance 5 Company, MERSCORP, Inc., and MERS. (Case no. 105, dkt. no. 1-2.) On December 6 29, 2011, Plaintiff filed a motion for a temporary restraining order and preliminary 7 injunction in Nevada State court. (Case no. 105, dkt. no. 1-4.) Plaintiff also recorded a 8 Notice of Lis Pendens on the Property on January 5, 2012. (Case no. 105, dkt. no. 1-3.) 9 Defendants timely removed to this Court. (Case no. 344, dkt. no. 1.) Because Plaintiff 10 incorrectly named California Reconveyance as trustee in his first action, Plaintiff filed a 11 subsequent action against the proper Defendant, California-Western Reconveyance 12 Corporation.2 13 26, 2012. (Case no. 344, dkt. no. 15.) 2:12-cv-00344-MMD-VCF. The two cases were consolidated on March 14 On February 9, 2012, the Court denied Plaintiff’s motion for a temporary 15 restraining order and a preliminary injunction, holding that he was unlikely to succeed on 16 any of his claims. (Case no. 105, dkt. no. 10.) 17 Plaintiff alleges eight causes of action in his Complaint: (1) injunctive/declaratory 18 relief; (2) negligence; (3) wrongful foreclosure; (4) breach of the covenant of good faith 19 and fair dealing; (5) statutorily defective foreclosure; (6) misrepresentation; (7) 20 detrimental reliance; and (8) violations of the Fair Debt Collection Practices Act (15 21 U.S.C. § 1692). (Case no. 105, dkt. no. 1-2; case no. 344, dkt. no. 1 at 7-24.) 22 II. 23 Plaintiff’s Motion to Remand to State Court and Motion to Stay Pending this Court’s Decision on His Motion to Remand 24 Plaintiff first requests that this Court stay proceedings until it issues an order on 25 Plaintiff’s Motion to Remand. A stay is not necessary. The Court addresses Plaintiff’s 26 27 28 2 Plaintiff has voluntarily dismissed Defendant California Reconveyance. (Case 105, dkt. no. 8.) Because Plaintiff did not comply with the notice requirements of Fed. R. Civ. P. 41(a)(2) in his Notice of Voluntary Dismissal, California Reconveyance requests that the Court formally dismiss it from this case with prejudice. (Case no. 105, dkt. no. 14 at 3.) 3 1 Motion with this Order and does not rule on any dispositive motions in this case before 2 addressing that Motion. Further, staying proceedings merely because a party has a 3 pending motion before the Court is procedurally improper. 4 In his Motion to Remand, Tapia appears to argue that removal was improper 5 because not all Defendants acquiesced to the removal, no federal subject matter 6 jurisdiction or diversity jurisdiction exists, and that this Court should abstain from 7 exercising jurisdiction due to the important issues of state law raised in Plaintiff’s 8 Complaint. 9 Tapia’s arguments with respect to abstention and joinder are meritless. Moreover, 10 because removal was proper under this Court’s diversity jurisdiction, the Court will not 11 address federal question jurisdiction. 12 To establish subject matter jurisdiction pursuant to diversity of citizenship, the 13 party asserting jurisdiction must show: (1) complete diversity of citizenship among 14 opposing parties and (2) an amount in controversy exceeding $75,000. 28 U.S.C. § 15 1332(a). 16 To satisfy the amount in controversy requirement, the defendant must either: (1) 17 demonstrate that it is facially evident from the plaintiff’s complaint that the plaintiff seeks 18 damages in excess of $75,000, or (2) prove, by a preponderance of the evidence, that 19 the amount in controversy meets the jurisdictional limit. Valdez v. Allstate Ins. Co., 372 20 F.3d 1115, 1116-1117 (9th Cir. 2004). In determining what evidence may be considered 21 under (2) above, the Ninth Circuit has adopted the “practice of considering facts 22 presented in the removal petition as well as any ‘summary-judgment[sic]-type evidence 23 relevant to the amount in controversy at the time of removal.’” Matheson v. Progressive 24 Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (quoting Singer v. State Farm 25 Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir.1997)). 26 This action was properly removed as a diversity action. Plaintiff essentially admits 27 as much at paragraph 8 of his Complaint. That paragraph states that “Plaintiff is a 28 resident of the state of Nevada” and that “Defendants . . . [are] foreign corporations 4 1 conducting business” in Nevada. In fact, Plaintiff is a citizen of Nevada. (Dkt. no. 9 at ¶ 2 4.) Defendant Cal-Western is a California corporation (case no. 344, dkt. no. 5 at ¶ 3) as 3 is California Reconveyance (case no. 105, dkt. no. 9 at ¶ 4), and Defendants MERS and 4 MERSCORP are Delaware corporations (id). There is complete diversity between the 5 parties. The amount-in-controversy requirement is also satisfied. 6 “In actions seeking 7 declaratory or injunctive relief, it is well established that the amount in controversy is 8 measured by the value of the object of the litigation.” Cohn v. Petsmart, 281 F.3d 837, 9 840 (9th Cir. 2002). 10 According to the notice of trustee sale, the Property is worth $222,092.99. (Case no. 344, dkt. no. 11 at 58.) For these reasons, Plaintiff’s Motions to Remand to State Court and to Stay 11 12 Pending Determination on Motion to Remand are denied. 13 III. 14 Defendants MERS, MERSCORP, and California Reconveyance’s Motion for Judgment on the Pleadings and Defendant Cal-Western’s Motion to Dismiss or Motion for Summary Judgment3 15 Defendant MERS, MERSCORP, and California Reconveyance jointly filed a 16 Motion for Judgment on the Pleadings. Defendant Cal-Western filed a Motion to Dismiss 17 or Motion for Summary Judgment and a Motion for Decision. Because the Motions all 18 seek to dismiss the same causes of action, the Court addresses them together. 19 A FRCP 12(c) motion for judgment on the pleadings utilizes the same standard as 20 a FRCP 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be 21 granted in that it may only be granted when it is clear to the Court that “no relief could be 22 granted under any set of facts that could be proven consistent with the allegations.” 23 McGlinchy v. Shull Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (citations omitted). 24 25 26 27 28 3 Defendant Cal-Western also filed a Motion for Decision (case no. 344, dkt. no. 19) because Plaintiff did not file an opposition to Defendant’s dispositive motions. It is true that failure to file points and authorities in opposition to a motion constitutes consent that the motion be granted. L.R. 7-2(d). However, because the pending motions are dispositive in nature, the Court conducts an independent review of the motions. Accord Abbott v. United Venture Capital, Inc., 718 F. Supp. 828, 831 (D. Nev. 1989). The Motion for Decision is therefore DENIED. 5 1 Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal 2 theory or absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. 3 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 4 A plaintiff’s complaint must allege facts to state a claim for relief that is plausible on its face. 6 plausibility” when the party seeking relief “pleads factual content that allows the court to 7 draw the reasonable inference that the defendant is liable for the misconduct alleged.” 8 Id. Although the Court must accept as true the well-pled facts in a complaint, conclusory 9 allegations of law and unwarranted inferences will not defeat an otherwise proper Rule 10 12(b)(6) motion. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 11 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires 12 more than labels and conclusions, and a formulaic recitation of the elements of a cause 13 of action will not do. Factual allegations must be enough to raise a right to relief above 14 the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 15 and footnote omitted). 16 See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A claim has “facial 5 A. Defective Foreclosure 17 Nevada law provides that a Deed of Trust is an instrument that may be used to 18 “secure the performance of an obligation or the payment of any debt.” Nev. Rev. Stat. § 19 107.020. Upon default, the beneficiary, the successor in interest of the beneficiary, or the 20 trustee may foreclose on the property through a trustee’s sale to satisfy the obligation. 21 Nev. Rev. Stat. § 107.080(2)(c). 22 The procedures for conducting a trustee’s foreclosure sale are set forth in NRS § 23 107.080. To commence a foreclosure, the beneficiary, the successor in interest of the 24 beneficiary, or the trustee must execute and record a notice of default and election to 25 sell. Nev. Rev. Stat. § 107.080(2)(c). A copy of the notice of default and election to sell 26 must be mailed by registered mail or certified mail with return receipt requested. Id. at § 27 107.080(3). The trustee or other person authorized to make the sale must wait at least 28 three months after recording the notice of default and election to sell before the sale may 6 1 proceed. Id. at § 107.080(2)(d). After the three month period, the trustee must give 2 notice of the time and place of the sale to each trustor by personal service or by mailing 3 the notice by registered or certified mail to the last known address of the trustor. Id. at § 4 107.080(4)(a). Under NRS § 107.080(5), a “sale made pursuant to this section may be 5 declared void by any court of competent jurisdiction in the county where the sale took 6 place if . . . [t]he trustee or other person authorized to make the sale does not 7 substantially comply with the provisions of this section.” 8 nominee on a Deed of Trust has the authority, as an agent, to act on behalf of the holder 9 of the promissory note and execute a substitution of trustees. Gomez v. Countrywide 10 Bank, FSB, 2009 WL 3617650, at *1 (D. Nev., Oct. 26, 2009). As long as the note is in 11 default and the foreclosing trustee is either the original trustee or has been substituted 12 by the holder of the note or the holder’s nominee, there is no defect in the Nevada 13 foreclosure. Id. at *2. Id. at § 107.080(5)(a). A 14 In this case, the proper entities foreclosed on the Property in the proper order. 15 MERS was given authority in the Deed of Trust to assign beneficial interest in the Deed 16 of Trust to others. (Case no. 105, dkt. no. 14-7.) As nominee, MERS also had the 17 authority to act on behalf of the holder of the note to execute a substitution of trustee. 18 See Gomez, 2009 WL 3617650, at *1. Pursuant to this authority, on October 28, 2008, 19 MERS assigned all beneficial interest under the Deed of Trust to U.S. Bank (case no. 20 105, dkt. no. 14-12) and substituted Cal-Western as trustee of the Deed of Trust (case 21 no 105, dkt. no. 14-11). On October 30, 2008 Cal-Western, as trustee, executed a notice 22 of default. (Case no. 105, dkt. no. 14-13.) The notice was sent to Plaintiff on November 23 3, 2008. (Case no. 105, dkt. no. 31 at 11-14.) 24 Plaintiff alleges the notice of substitution of trustee and notice of default were 25 never recorded, but the record demonstrates that this is incorrect. Plaintiff failed to cure 26 the default and accordingly Cal-Western recorded a notice of trustee’s sale on February, 27 9, 2009, February 15, 2011, and October 17, 2011. (Case no. 105, dkt. nos. 14-14, 14- 28 7 1 15, 14-16.) Because the statutory foreclosure procedures were properly followed, there 2 was no defect in the foreclosure. 3 Plaintiff also argues that the foreclosure was statutorily defective because his note 4 was split from the Deed of Trust. However, the theory that a party is not entitled to 5 foreclose because the note was split from the Deed of Trust has been repeatedly 6 rejected by this Court and the Ninth Circuit. 7 Loans, Inc., 656 F.3d 1034, 1044 (9th Cir. 2011); Vega v. CTX Mortgage Co., LLC, 761 8 F. Supp. 2d 1095, 1097-98 (D. Nev. 2011); Khankhodjaeva v. Saxon Mortgage Servs., 9 2012 WL 214302, at *4 (D. Nev., Jan. 24, 2012); Parker v. GreenPoint Mortgage 10 Funding Inc., 2011 WL 5248171, at *4 (D. Nev., Nov. 1, 2011); Wittrig v. First Nat’l Bank 11 of Nev., 2011 WL 5598321, at *5-6 (D. Nev., Nov. 15, 2011). For these reasons, Plaintiff’s defective foreclosure claim is dismissed against all 12 13 See Cervantes v. Countrywide Home Defendants. 14 B. Negligence 15 To prevail on a negligence claim, a plaintiff must show: “(1) the defendant owed a 16 duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the 17 legal cause of the plaintiff’s injury; and (4) the plaintiff suffered damages.” Scialabba v. 18 Brandise Const. Co., Inc., 921 P.2d 928, 930 (Nev. 1996). Generally, a lender owes no 19 duty of care to a borrower other than those duties defined by the Nevada foreclosure 20 statutes. Gomez, 2009 WL 3617650, at *8. 21 Plaintiff here contends that Defendants did not exercise reasonable care in 22 interacting with clients and that they neglected to advance the mutual benefits of all 23 parties to the Deed of Trust. However, Defendants had no extra-contractual duty to 24 exercise reasonable care to protect borrowers or to advance their interests. 25 Gomez, 2009 WL 3617650, at *8. The Court therefore dismisses Plaintiff’s negligence 26 claim against all Defendants. 27 /// 28 /// 8 See 1 C. 2 Under Nevada law, to succeed on a claim of wrongful foreclosure a plaintiff must 3 show that a lender wrongfully exercised the power of sale and foreclosed upon his or her 4 property when the homeowner was not in default on the mortgage loan. See Collins v. 5 Union Federal Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev.1983). Defendants represent 6 that the Property here has not yet been sold (case no. 105, dkt. no 105, dkt. no. 14 at 7 14, fn. 4) 8 Accordingly, this claim is dismissed against all Defendants. D. 9 Wrongful Foreclosure 4 and Plaintiff does not allege that he has not defaulted on the mortgage loan. Breach of the Covenant of Good Faith and Fair Dealing 10 Nevada law holds that “[e]very contract imposes upon each party a duty of good 11 faith and fair dealing in its performance and its enforcement.” A.C. Shaw Constr., Inc. v. 12 Washoe County, 784 P.2d 9, 9 (Nev. 1989) (quoting Restatement (Second) of Contracts 13 § 205). 14 purpose of the contract and the justified expectations of the other party are thus denied, 15 damages may be awarded against the party who does not act in good faith.” Hilton 16 Hotels v. Butch Lewis Prods., Inc., 808 P.2d 919, 923 (Nev. 1991). To succeed on a 17 cause of action for breach of the covenant of good faith and fair dealing, a plaintiff must 18 therefore show: (1) the plaintiff and defendant were parties to an agreement; (2) the 19 defendant owed a duty of good faith to the plaintiff; (3) the defendant breached that duty 20 by performing in a manner that was unfaithful to the purpose of the contract; and (4) the 21 plaintiff's justified expectations were denied. Id.; see also Perry v. Jordan, 900 P.2d 335, 22 338 (Nev. 1995). “When one party performs a contract in a manner that is unfaithful to the 23 Plaintiff contends that Defendants breached the covenant of good faith and fair 24 dealing by conspiring to wrongfully foreclose on him and unlawfully convert the Property. 25 (Case no. 105, dkt. no. 1-2 at ¶ 59). Yet the Deed of Trust specifically provided for 26 foreclosure in the event of default and the failure to cure. (See case no. 105, dkt. no. 14- 27 28 4 Nor has there been a recent filing demonstrating that the Property has been sold. 9 1 8.) Because the express terms of the Deed of Trust allow for foreclosure, Defendants 2 did not act unfaithfully to the purpose of the Deed of Trust and any expectations Plaintiff 3 may have had that other parties could not foreclose on the Property were not justified. 4 This claim is dismissed against all Defendants. 5 E. Misrepresentation 6 A claim of fraud requires the plaintiff to establish each of the following elements: 7 (1) a false representation; (2) knowledge or belief that the representation was false (or 8 knowledge that the defendant's basis for making the representation was insufficient); (3) 9 intent to induce the plaintiff to consent to the contract’s formation; (4) justifiable reliance 10 upon the misrepresentation; and (5) damage resulting from such reliance. J.A. Jones 11 Const. Co. v. Lehrer McGovern Bovis, Inc., 89 P.3d 1009, 1018 (Nev. 2004). According 12 to Fed. R. Civ. P. 9(b), a party alleging fraud “must state with particularity the 13 circumstances constituting fraud or mistake.” To satisfy this standard, a plaintiff must 14 plead “an account of the ‘time, place, and specific content of the false representations as 15 well as the identities of the parties to the misrepresentations.’” Swartz v. KPMG LLP, 16 476 F.3d 756, 764 (9th Cir. 2007) (quoting Edwards v. Marin Park, Inc., 356 F.3d 1058, 17 1066 (9th Cir. 2004)). 18 Plaintiff alleges that Defendants engaged in fraud by “feign[ing] consideration of 19 modification options, only to ultimately expedite foreclosure,” by making false 20 representations in public notices and records, and by pretending to record documents 21 pursuant to NRS § 107.080. (Case no. 105, dkt. no. 1-2 at 12-14.) Plaintiff has however 22 failed to plead with particularity by stating the content of the false representations, the 23 identity of the party who made the representations, and the time and place of the 24 representations. 25 defendants together but requires plaintiffs to differentiate their allegations when suing 26 more than one defendant . . . and inform each defendant separately of the allegations 27 surrounding his alleged participation in the fraud.” Swartz v. KPMG LLP, 476 F.3d 756, 28 764-65 (9th Cir. 2007) (internal quotations and modifications omitted). “In the context of “Rule 9(b) does not allow a complaint to merely lump multiple 10 1 a fraud suit involving multiple defendants, a plaintiff must, at a minimum, identify the role 2 of each defendant in the alleged fraudulent scheme.” 3 modifications omitted). Id. (internal quotations and 4 Further, the record contradicts Plaintiff’s claim that Defendants only pretended to 5 record documents pursuant to NRS § 107.080, as Defendants have presented copies of 6 those documents which demonstrates that they were in fact recorded. (See, e.g., Case 7 no. 105, dkt. nos. 14-11, 14-12, 14-13, 14-14, 14-15, 14-16.) 8 These claims are therefore dismissed against all Defendants. 9 F. 10 Detrimental Reliance Plaintiff’s detrimental reliance claim is vague and seems to overlap with a number 11 of his other claims. Plaintiff essentially asserts that he relied on the belief that 12 Defendants would follow the statutorily prescribed protocols in foreclosing and that 13 Defendants failed to follow these protocols by not mailing to him the notice of default. 14 (Case no. 105, dkt. no. 1-2 at 14.) 15 Plaintiff’s argument is flawed in three respects. First, Defendant Cal-Western did 16 mail Plaintiff the notice of default in accordance with NRS § 107.080(3). (dkt. no. 31 at 17 11-14.) Second, “detrimental reliance” is not a separate cause of action, but an element 18 of promissory estoppel. Third, there is no evidence that Defendants made any promises 19 regarding the foreclosure of Plaintiff’s home for which Plaintiff relied upon. 20 This claim is accordingly dismissed against all Defendants. 21 G. 22 For a defendant to be liable for a violation of the Fair Debt Collection Practices 23 Act (“FDCPA”), the defendant must be classified as a “debt collector” within the meaning 24 of the Act. Heintz v. Jenkins, 514 U.S. 291, 294 (1995); McCurdy v. Wells Fargo Bank, 25 N.A., 2010 WL 4102943, at *3 (D. Nev., Oct. 18, 2010). A “debt collector” is defined by 26 the FDCPA as a person “who regularly collects or attempts to collect, directly or 27 indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 28 1692a(6). Foreclosure pursuant to a Deed of Trust does not constitute debt collection Fair Debt Collection Practices Act 11 1 under the FDCPA. Camacho-Villa v. Great W. Home Loans, 2011 WL 1103681, at *4 2 (D. Nev., March 23, 2011). Additionally, “the FDCPA’s definition of ‘debt collector’ does 3 not ‘include the consumer’s creditors, a mortgage servicing company, or any assignee of 4 the debt, so long as the debt was not in default at the time it was assigned.’” Id. 5 (quoting Croce v. Trinity Mortgage Assurance Corp., 2009 WL 3172119, at *2 (D. Nev., 6 Sept. 28, 2009)). As Defendants are foreclosing on the Property pursuant to a Deed of 7 Trust, they do not qualify as “debt collectors” within the meaning of the FDCPA. This 8 claim is dismissed against all Defendants. H. 9 Injunctive and Declaratory Relief 10 Injunctive and declaratory relief are not separate causes of action, but are 11 dependent on the merits of the plaintiff’s substantive claims. See Stock West, Inc. v. 12 Confederated Tribes of the Coville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989); In 13 re Wal-Mart Wage & Hour Employ. Practices Litig., 490 F. Supp. 2d 1091, 1130 (D. Nev. 14 2007). As the Court dismisses all of Plaintiff’s substantive claims for relief, it also 15 dismisses these dependent claims. 16 IV. Defendants’ Motions to Expunge Lis Pendens 17 NRS § 14.010 allows a notice of pendency or a lis pendens to be filed for an action 18 pending in the United States District Court for the District of Nevada when there is “a notice 19 of an action affecting real property, which is pending,” in any such court. NRS § 14.010(2). 20 This Order dismisses Plaintiff’s action. 21 are granted. 22 V. 23 24 Accordingly, the Motions to Expunge Lis Pendens CONCLUSION IT IS HEREBY ORDERED THAT Plaintiff’s Motion to Remand and Motion to Stay are DENIED. 25 IT IS FURTHER ORDERED THAT Defendants’ MERS, MERSCORP, and 26 California Reconveyance Corporation’s Motion for Judgment on the Pleadings is 27 GRANTED with prejudice to Defendant California Reconveyance Corporation and 28 without prejudice to Defendants MERS and MERSCORP; 12 1 2 3 4 5 6 7 IT IS FURTHER ORDERED THAT Defendant Cal-Western’s Motion to Dismiss or Motion for Summary Judgment is GRANTED without prejudice; IT IS FURTHER ORDERED THAT Defendants’ Motions to Expunge Lis Pendens are GRANTED. IT IS FURTHER ORDERED THAT Defendant Cal-Western’s Motion for Decision is DENIED. IT IS SO ORDERED. 8 9 ENTERED THIS 6th day of August 2012. 10 11 UNITED STATES DISTRICT JUDGE 12 13 14 DATED THIS____ day of _________, 2012. 15 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 13

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