Mann v. Nationstar Mortgage, LLC

Filing 64

ORDER Granting 5 and 9 Motions to Dismiss. Plaintiffs complaint is DISMISSED in its entirety. Denying 37 Motion for judicial notice. Signed by Judge Larry R. Hicks on 12/18/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOHN W. MANN

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Plaintiff,

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v.

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NATIONSTAR MORTGAGE; et al.,

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Defendants.

2:12-cv-1077-LRH-CWH
ORDER

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Before the court is defendant Stewart Title Guaranty Company’s (“Stewart Title”) motion to

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dismiss. Doc. #5.1 Pro se plaintiff John W. Mann (“Mann”) filed an opposition (Doc. #17) to which

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Stewart Title replied (Doc. #26).

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Also before the court is defendant Nationstar Mortgage LLC’s (“Nationstar”) motion to

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dismiss (Doc. #9) to which defendant First American Trustee Servicing Solution, LLC

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(“First American”) joined (Doc. #29). Plaintiff Mann filed an opposition (Doc. #23) to which

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Nationstar replied (Doc. #39).

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I.

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Facts and Background
In November 2006, Mann purchased real property through two separate loans: a first loan

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executed by non-party Freemont Investment & Loan, and a second loan executed by the seller of

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the property, non-party John F. Stanhagen Jr. In March 2007, Mann refinanced the first deed of

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Refers to the court’s docket number.

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trust executed by Freemont Investment & Loan through a new deed of trust executed by defendant

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Nationstar. Mann eventually defaulted on the property and defendants initiated non-judicial

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foreclosure proceedings.

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Subsequently, on June 22, 2012, Mann filed a complaint against defendants alleging three

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causes of action: (1) Nevada Unfair Lending Practices Act, NRS 598D.100; (2) quiet title; and

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(3) violation of NRS 107.080. Doc. #1, Exhibit A. Thereafter, defendants filed the present motions

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to dismiss. Doc. ##5, 9.

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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)).

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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. Nevada Unfair Lending Practices Act

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NRS 598D.100 prohibits lenders from making loans “without determining, using

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commercially reasonable means or mechanisms, that the borrower has the ability to repay the home

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loan.” NRS 598D.100(1)(b). However, this suitability language was added in mid-2007 when the

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statute was amended. Although Mann alleges that defendants violated the present version of the

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statute, his loan originated in early 2007, prior to the current amendment. Therefore, Mann’s loan

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cannot have violated the current statutory language requiring a determination that a borrower has

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the ability to repay the loan.

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Additionally, Mann’s unfair lending practices claim is barred by the applicable statute of

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limitations. The statute of limitations on an unfair lending practices claim under NRS 598D is two

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(2) years. See NRS § 11.190(3)(a). Mann refinanced the property in 2007, and did not file the

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present action until 2012, over three years after the statute of limitations had expired.

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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, defendants do not claim any interest in the property

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adverse to Mann’s interest in the property.
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Further, in a quiet title action, the burden of proof rests with the plaintiff to prove good title

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in himself and to allege that he was paid any debt owed on the property. See Wensley v. First Nat.

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Bank of Nevada, 2012 WL 1971773 (D. Nev. 2012). It is undisputed that Mann was in default on

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the mortgage loan. Therefore, the court finds that Mann has no grounds to quiet title against

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defendants.

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C. NRS 107.080

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In his complaint, Mann alleges that defendants improperly foreclosed on his property

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because none of the defendants hold the original mortgage note. See Doc. #1, Exhibit A.

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At the time of Mann’s foreclosure, Nevada law did not require the production of the

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original note before one of the statutorily enumerated parties initiates a non-judicial foreclosure.

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Weingarter v. Chase Home Finance, LLC, 702 F. Supp. 2d 1276, 1280 (D. Nev. 2010).
Further, there is no private right of action for tort damages under section 107.080. See

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Chavez v. Cal Recon. Co., 2010 WL 2545006, *2, (D. Nev. 2010). The only available remedy

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under section 107.080 is for the court to void a trustee’s sale that was undertaken in violation of the

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statute. As there has been no trustee’s sale, Mann is not entitled to any remedy for defendants’

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alleged failure to comply with NRS 107.080. Therefore, the court finds that Mann fails to allege a

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claim upon which relief can be granted. Accordingly, the court shall grant defendants’ motions to

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dismiss and dismiss Mann’s complaint in its entirety.

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In granting defendants’ motions to dismiss, the court notes that Mann is appearing pro se in

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this action. Usually in such a circumstance the court would grant Mann leave to file an amended

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complaint to state a cause of action against defendants upon which relief can be granted. However,

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in this instance, the court finds that amendment would be futile because the motions to dismiss are

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not based on identified pleading defects, but on matters of law that are well settled in this district.

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Therefore, the court shall not grant pro se plaintiff Mann leave to file an amended complaint.

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IT IS THEREFORE ORDERED that defendants’ motions to dismiss (Doc. ##5, 9) are
GRANTED. Plaintiff’s complaint (Doc. #1, Exhibit A) is DISMISSED in its entirety.
IT IS FURTHER ORDERED that plaintiff’s motion for judicial notice (Doc. #37) is
DENIED.

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IT IS SO ORDERED.

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DATED this 18th day of December, 2012.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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