Hine v. Bank of America N.A. et al

Filing 20

ORDER DISMISSING CASE Granting 8 Defendants' Motion to Dismiss. IT IS FURTHER ORDERED that 9 Defendants' Motion to Expunge Lis Pendens is Granted. The Clerk of the Court is instructed to close this case. Signed by Judge Miranda M. Du on 11/2/2012. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
FRANK HINE,

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Plaintiff,
ORDER

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Case No. 2:12-cv-00220-MMD-PAL

v.
BANK OF AMERICA, N.A.; RECONTRUST
COMPANY, N.A.; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS
INC.; and DOES 1-100,

(Defs.’ Motion to Dismiss – dkt. no. 8;
Defs. Motion to Expunge Lis Pendens –
dkt. no. 9)

Defendants.

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I.

SUMMARY

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Before the Court are Defendants Bank of America, N.A., ReconTrust Company,

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N.A., and Mortgage Electronic Registration Systems Inc.’s Motion to Dismiss (dkt. no. 8)

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and Motion to Expunge Lis Pendens (dkt. no. 9). For the reasons discussed below, the

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Motions are granted.

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II.

BACKGROUND

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This action opposing the non-judicial foreclosure on a home arises out of facts

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now fairly familiar to this Court. In 2006, Plaintiff purchased property with two loans,

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which were secured by deeds of trust on the property. In 2007, Plaintiff refinanced the

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loans through First Option Mortgage. The deed of trust securing the refinancing loan

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listed First Option Mortgage as the lender and Defendant Mortgage Electronic

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Registration Systems Inc. (“MERS”) as both the beneficiary and the lender’s nominee.

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MERS purported to substitute Defendant ReconTrust Company, N.A. (“ReconTrust”) as

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the Foreclosing Trustee on August 15, 2008.

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At some point thereafter, Plaintiff defaulted on the loan.

ReconTrust first

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instigated foreclosure proceedings on August 15, 2008, but later rescinded the Notice of

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Default.

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proceedings again on May 19, 2010. The Foreclosing Deed of Trust was assigned to

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Defendant Bank of America, N.A. (“BANA”) on May 24, 2010.

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certificate of compliance with the Nevada foreclosure mediation program was recorded

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along with the notice of trustee’s sale.

However, Plaintiff was still in default, and ReconTrust instigated the

On May 2, 2011, a

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Plaintiff alleges that, under Nevada law, MERS was not properly a beneficiary of

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the original deed of trust and lacked the authority to substitute ReconTrust as the

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Foreclosing Trustee. Consequently, the foreclosure and subsequent trustee’s sale were

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unauthorized and legally invalid. Seeking redress, Plaintiff filed this complaint February

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13, 2012, alleging violations of RESPA, including a refusal to respond to a “Qualified

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Written Request,” violations of NRS § 107.080, intentional infliction of emotional distress,

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and quiet title.

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However, the instant action is not Plaintiff’s first. Plaintiff first filed a complaint

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against the same Defendants1 on May 18, 2011, alleging claims for violations of the Real

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Estate Collection Practices Act (“RESPA”), fraud, breach of contract, “fraudulent

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foreclosure,” violation of the Fair Debt Collection Practices Act, notary fraud, and

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fraudulent assignment. That complaint was voluntarily dismissed. Plaintiff then brought

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another action on September 26, 2011, alleging violations of RESPA, fraud, breach of

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contract, “fraudulent foreclosure,” violation of the Fair Debt Collection Practices Act,

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notary fraud, fraudulent assignment, and violation of Nevada’s foreclosure mediation

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program, NRS § 107.086. The Court dismissed the second complaint with prejudice on

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January 30, 2012.

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Plaintiff’s prior complaints also listed BAC Home Loans Servicing, LP as a
defendant. BAC Home Loans Servicing, LP recently merged with Bank of America, N.A.
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Defendants BANA, ReconTrust, and MERS (collectively, “Defendants”), seek

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dismissal of Plaintiff’s complaint, arguing that all claims are precluded by the previous

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dismissal. For the reasons discussed below, the Court agrees.

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III.

DISCUSSION

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A.

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The federal law of claim preclusion applies when considering the preclusive effect

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of a prior federal court decision. First Pacific Bancorp, Inc. v. Helfer, 224 F.3d 1117,

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1128 (9th Cir. 2000).

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adjudication 1) was between the same parties, 2) resulted in a final judgment on the

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merits, and 3) involved the same “claim” currently asserted. Nordhorn v. Ladish Co., 9

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F.3d 1402, 1403 (9th Cir.1993) (citing Blonder-Tongue Laboratories v. University of Ill.

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Found., 402 U.S. 313, 323-24 (1971)).

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Legal Standard

A claim is precluded by a prior adjudication when the prior

In determining whether two suits involve the same claim, the Ninth Circuit
employs a four part test:

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(1) Whether rights or interests established in the prior judgment would be
destroyed or impaired by prosecution of the second action; (2) whether
substantially the same evidence is presented in the two actions; (3)
whether the two suits involve infringement of the same right; and (4)
whether the two suits arise out of the same transactional nucleus of facts.

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Constantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982) (citing Harris

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v. Jacobs, 621 F.2d 341, 343 (9th Cir. 1980)). The most important of these factors is the

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fourth. Constantini, 681 F.2d at 1202. Where a new complaint involves the same claim

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previously adjudicated, the doctrine of claim preclusion not only bars previous claims

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explicitly pled, but “all grounds for recovery which could have been asserted, whether

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they were or not.” Constantini, 681 F.2d at 1201.

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B.

Discussion

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Plaintiff’s Complaint is repetitious of his previous complaints, and all recovery is

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barred by the doctrine of claim preclusion. First, the parties are the same; both prior

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complaints were against BANA, ReconTrust, and MERS. Second, although the first

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complaint was voluntarily dismissed, the second complaint was dismissed by the Court
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with prejudice. This operates as a final decision on the merits. Finally, the RESPA claim

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was specifically asserted in the previous complaint and dismissed. Thus, the only

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question remaining is whether the claims for non-response to a Qualified Written

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Request, intentional infliction of emotional distress, and quiet title are sufficiently distinct

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from the prior claims to survive as independent causes of action.

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The Court concludes that these claims are not sufficiently distinct because all four

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of the Constantini factors are met in this case. As to the first factor, the prior adjudication

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established the rights of the Defendants in the foreclosed property. Plaintiff now asks

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the Court, among other things, to vacate the trustee sale, and enjoin the sale,

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advertisement, or transfer of the home. This certainly would impair the rights of

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Defendants established in the first action.

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As to the second, third, and fourth factors, most of the current Complaint’s content

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is identical to that in the previous complaints. The previous complaint similarly alleges

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that because MERS was not a proper beneficiary, it had no authority to transfer the right

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to foreclose to another party, resulting in improper foreclosure. Plaintiff merely reasserts

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the same facts and legal theory as set forth in the prior complaint but attaches different

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labels to the claims. Thus, the instant action involves the same evidence, essential legal

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right, and transactional nucleus of facts as the complaint that was dismissed with

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prejudice. Even though Plaintiff has listed legal causes of action that were not

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specifically averred in the first complaint, these claims are grounds for recovery which

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could have been previously asserted. Consequently, they are barred by the doctrine of

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claim preclusion.
Additionally, because the Complaint is dismissed, Plaintiff’s notice of pendency

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cannot be maintained. Therefore, the Court also grants Defendants’ Motion to Expunge

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Lis Pendens.

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III.

CONCLUSION

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IT IS THEREFORE ORDERED that Defendants Bank of America, N.A.,

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ReconTrust Company, N.A., and Mortgage Electronic Registration Systems Inc.’s Motion

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to Dismiss is GRANTED

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IT IS FURTHER ORDERED that Defendants Bank of America, N.A., ReconTrust

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Company, N.A., and Mortgage Electronic Registration Systems Inc.’s Motion to Expunge

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Lis Pendens is GRANTED.

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The Clerk of the Court is instructed to close this case.

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DATED THIS 2nd day of November 2012.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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