Lee v. Countrywide Home Loans Inc. et al

Filing 18

ORDER Granting 14 Defendants' Motion to Dismiss and Denying 17 Plaintiff's Motion to Amend Complaint. Plaintiff's Complaint 1 is DISMISSED in its entirety. Signed by Judge Larry R. Hicks on 07/05/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MONICA LEE,

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Plaintiff,

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v.

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COUNTRYWIDE HOME LOANS, INC.;
et al.,

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Defendants.
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2:12-cv-0136-LRH-GWF
ORDER

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Before the court is defendants Countrywide Home Loan, Inc. (“Countrywide”) and

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ReconTrust Company, N.A.’s (“ReconTrust”) motion to dismiss. Doc. #14.1 Plaintiff Monica Lee

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(“Lee”) filed an opposition (Doc. #16) and a counter-motion to amend (Doc. #17).

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I.

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Facts and Procedural History
In August 2005, Lee purchased real property through a mortgage note and deed of trust

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originated by defendant Countrywide. Eventually, Lee defaulted on the mortgage note and

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defendants initiated non-judicial foreclosure proceedings.

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Subsequently, Lee filed a complaint in state court against defendants alleging two causes of

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action: (1) wrongful foreclosure; and (2) quite title. Doc. #1. Thereafter, defendants filed the

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present motion to dismiss. Doc. #14.

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Refers to the court’s docket

entry number.

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II.

Legal Standard

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Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

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to state a claim upon which relief can be granted. To survive a motion to dismiss for failure to state

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a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading

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standard. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That

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is, a complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require

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detailed factual allegations; however, a pleading that offers “‘labels and conclusions’ or ‘a

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formulaic recitation of the elements of a cause of action’” will not suffice. Ashcroft v. Iqbal, 129 S.

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Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 1949 (quoting

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Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows

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the court to draw the reasonable inference, based on the court’s judicial experience and common

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sense, that the defendant is liable for the misconduct alleged. See id. at 1949-50. “The plausibility

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standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a

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defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a

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defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to

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relief.” Id. at 1949 (internal quotation marks and citation omitted).

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In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as

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true. Id. However, “bare assertions . . . amount[ing] to nothing more than a formulaic recitation of

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the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret

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Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1951) (brackets in original)

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(internal quotation marks omitted). The court discounts these allegations because “they do nothing

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more than state a legal conclusion—even if that conclusion is cast in the form of a factual

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allegation.” Id. (citing Iqbal, 129 S. Ct. at 1951.) “In sum, for a complaint to survive a motion to

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dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be

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plausibly suggestive of a claim entitling the plaintiff to relief.” Id.

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III.

Discussion

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A. Wrongful Foreclosure

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An action for wrongful foreclosure requires that, at the time of the foreclosure sale, the

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plaintiff was not in breach of the mortgage contract. Collins v. Union Federal Sav. & Loan Ass’n,

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662 P.2d 610, 623 (Nev. 1983). Here, it is undisputed that Lee was in default on her mortgage

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obligations so there can be no sustainable action for wrongful foreclosure.

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Further, to rescind a trustee’s sale pursuant to NRS 107.080, a plainitff must bring an

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appropriate action within ninety (90) days. NRS 107.080(5). Here, the trustee’s sale took place on

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May 6, 2011. Lee did not file the present action until January 27, 2012, over five months after the

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ninety day deadline terminated. Therefore, Lee has no basis to void the trustee’s sale and the court

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shall grant defendants’ motion accordingly.

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B. Quiet Title

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Under Nevada law, a quiet title action may be brought by someone who claims an adverse

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interest in property. NRS 40.010. Here, no defendant is claiming an interest in the property that is

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adverse to Lee as the property has already been sold at a trustee’s sale to a third-party. Therefore,

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Lee has no grounds to quiet title against defendants and the court shall grant the motion to dismiss

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as to this issue.

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C. Motion to Amend

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A party may amend its pleadings after a responsive pleading has been filed by leave of

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court. FED. R. CIV. P. 15(a)(2). Leave of court to amend should be freely given when justice so

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requires and when there is no undue delay, bad faith, or dilatory motive on the part of the moving

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party. See Wright v. Incline Village General Imp. Dist., 597 F.Supp.2d 1191 (D. Nev. 2009); DCD

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Programs, LTD v. Leighton, 883 F.2d 183 (9th Cir. 1987).
Here, Lee requests the court grant her leave to amend her claim, but fails to identify how

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she would amend her claim or what claims or allegations she could add that would rectify the

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identified claim defects. Further, Lee has failed to provide a copy of the proposed amended

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complaint in accordance with LR 15-1. Finally, the court finds that allowing an amended complaint

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would unduly prejudice defendants as this is the third separate action brought by Lee concerning

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the underlying property. Accordingly, the court shall deny Lee’s motion to amend.

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IT IS THEREFORE ORDERED that defendants’ motion to dismiss (Doc. #14) is
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GRANTED. Plaintiff’s complaint (Doc. #1) is DISMISSED in its entirety.
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IT IS FURTHER ORDERED that plaintiff’s motion to amend (Doc. #17) is DENIED.
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IT IS SO ORDERED.
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DATED this 5th day of July, 2012.
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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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