McKinnon et al v. NDEX West, LLC

Filing 15

ORDER Denying as moot 7 Motion to Dismiss. IT IS FURTHER ORDERED that 9 Motion to Expunge Lis Pendens is, DENIED as moot. Signed by Judge James C. Mahan on 4/16/2012. (Copies have been distributed pursuant to the NEF - DXS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THOMAS MCKINNON and GERI
MCKINNON,

2:12-CV-329JCM (VCF)

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Plaintiffs,

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v.

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ONEWEST BANK, FSB, et al.,

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Defendants.

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ORDER

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Presently before the court is defendant NDEX West, LLC’s motion to dismiss. (Doc. #7).

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Pro se plaintiffs Thomas and Geri McKinnon did not file an opposition, but rather filed an amended

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complaint on April 9, 2012. (Doc. #14). Also before the court is defendant’s motion to expunge lis

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pendens. (Doc. #9). Plaintiffs filed an opposition. (Doc. #13).

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The property at issue in this case is located at 6208 Sweetbriar Court, Las Vegas, Nevada.

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(Doc. #1). On September 26, 2006, plaintiffs borrowed $223,275 to purchase the property, and

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secured the loan with a deed of trust against the property. (Doc. #8, Exs. 1 and 2). Plaintiffs stopped

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making payments on the loan, and defendant recorded a notice of breach and election to sell under

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deed of trust on December 28, 2009. (Doc. #8, Ex. 3).

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Plaintiffs elected to participate in Nevada’s foreclosure mediation program, and a mediation

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was held on July 20, 2010. The foreclosure mediation program issued a foreclosure certificate on

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May 17, 2011. (Doc. #7, Ex. 5). Plaintiffs filed the instant action on February 29, 2012, alleging

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James C. Mahan
U.S. District Judge

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one claim for violation of the Fair Debt Collection Practices Act. (Doc. #1).

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Plaintiffs filed their first amended complaint on April 9, 2012, 18 days after defendant filed

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a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Therefore, plaintiffs’

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amendment was as of right under Federal Rule of Civil Procedure 15(a)(1)(B).

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant NDEX West,

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LLC’s motion to dismiss (doc. #7) be, and the same hereby is, DENIED as moot.
IT IS FURTHER ORDERED that defendant NDEX West, LLC’s motion to expunge lis
pendens (doc. #9) be, and the same hereby is, DENIED as moot.
DATED April 16, 2012.

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

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