Cooley v. Bank of America, N.A. et al
Filing
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ORDER that plaintiff Judge Cooleys request for a preliminary injunction is DENIED. Defendants Bank of America et al.s motion to dismiss and expunge lis pendens 6 is GRANTED. The case is hereby dismissed without prejudice. The lis pendens is cancel ed, released, and expunged. Defendants shall record a properly certified copy of this order in the real property records of Clark County, Nevada within a reasonable amount of time from the date of this order. Signed by Judge James C. Mahan on 10/26/12. (Copies have been distributed pursuant to the NEF - ECS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JUDGE COOLEY,
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2:12-CV-1628 JCM (CWH)
Plaintiff,
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v.
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BANK OF AMERICA, N.A., et al,
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Defendants.
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ORDER
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Presently before the court is plaintiff Judge Cooley’s request for a preliminary injunction.
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(Doc. # 1-1, ¶ 17).1 Defendants Bank of America et al. have filed an opposition. (Doc. # 7). Also
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before the court is defendants’ motion to dismiss and expunge lis pendens. (Doc. # 6). Plaintiff failed
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to file an opposition.
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I.
Preliminary Injunction
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Federal Rule of Civil Procedure 65 allows a court to issue a preliminary injunction. “An
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injunction is a matter of equitable discretion” and is “an extraordinary remedy that may only be
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awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def.
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Council, Inc., 555 U.S. 7, 22, 32 (2008). To prevail on a motion for a preliminary injunction plaintiff
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must establish: (1) a likelihood of success on the merits; (2) a likelihood of irreparable injury if the
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preliminary injunction is not granted; (3) that the balance of hardships tips in plaintiff’s favor; and
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(4) that an injunction is in the public interest. Id. at 20.
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James C. Mahan
U.S. District Judge
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This case was properly removed from state court on September 17, 2012.
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This court has previously dismissed a prior action by plaintiff against Countrywide Home
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Loans and Recontrust Company, et al. for failure to state a claim upon which relief can be granted.
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(See doc. # 16, 2:09-cv-01554-JCM-RJJ). In that case, plaintiff’s alleged causes of action for (1)
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unfair lending practices in violation of NRS § 598D, (2) breach of covenant of good faith and fair
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dealing, (3) misrepresentation, (4) negligence/negligence per se, (5) breach of fiduciary relationship,
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(6) wrongful foreclosure, (7) injunctive relief, and (8) deceptive trade practices. (See doc. # 1 in
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2:09-cv-01554-JCM-RJJ). In this case, plaintiff brings a complaint alleging (1) quiet title, (2)
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aiding/abetting wrongful foreclosure, (3) wrongful foreclosure, (4) unlawful (statutorily defective)
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foreclosure in violation of NRS § 107.080, (5) unlawful reliance on falsified documents against
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property rights in violation of NRS § 205.372-95, (6) false recordation concerning title to real
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property, (7) broken chain of custody (promissory note and assignment rights), (8) cancellation of
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instruments, (9) wrongful and parallel foreclosure, (10) injunctive relief, (11) declaratory relief, and
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(12) violation of the Fair Housing Act in violation of 42 U.S.C. § 3601 et. seq. (Doc. # 1-1).
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In the previous case, the court ruled that loan securitization does not invalidate a secured loan
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and that the presence of Mortgage Electronic Registration System (MERS), as the lender’s nominee,
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also does not invalidate a lawful foreclosure process after plaintiff’s default in 2009. Although the
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causes of action here differ from those brought in plaintiff’s previous case, plaintiff makes no new
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allegations challenging the re-started foreclosure process that evidence a likelihood of success on
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the merits. Thus, the court denies plaintiff’s request for a preliminary injunction on the basis that
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plaintiff is unlikely to succeed on the merits.
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II.
Motion to Dismiss
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“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
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as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
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1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a
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complaint pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the
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line between possibility and plausibility of entitlement to relief.’” Id. (citing Bell Atlantic, 550 U.S.
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at 557). However, where there are well pled factual allegations, the court should assume their
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James C. Mahan
U.S. District Judge
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veracity and determine if they give rise to relief. Id. at 1950.
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Pursuant to Local Rule 7-2(d), an opposing party’s failure to file a timely response to any
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motion constitutes the party’s consent to the granting of the motion and is proper grounds for
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dismissal. U.S. v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). However, prior to dismissal, the
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district court is required to weigh several factors: “(1) the public's interest in expeditious resolution
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of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4)
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the public policy favoring disposition of cases of their merits; and (5) the availability of less drastic
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sanctions.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (citing Henderson v. Duncan, 779 F.2d
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1421, 1423 (9th Cir. 1986)).
In light of the plaintiff’s failure to respond and weighing the factors identified in Ghazali,
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the court finds dismissal appropriate.
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III.
Expunge Lis Pendens
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Plaintiff filed a recorded a lis pendens against the real property on August 22, 2012. (Doc.
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# 6, Ex. S). The causes of action against defendants being dismissed, the lis pendens is no longer
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necessary. In light of these facts and the plaintiff’s failure to respond, the court finds it is appropriate
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to expunge the lis pendens.
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IV.
Conclusion
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Accordingly,
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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED plaintiff Judge Cooley’s
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request for a preliminary injunction (doc. # 1-1, ¶ 17) be, and the same hereby is, DENIED.
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IT IS FURTHER ORDERED that defendants Bank of America et al.’s motion to dismiss and
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expunge lis pendens (doc. # 6) be, and the same hereby is, GRANTED. The case is hereby dismissed
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without prejudice.
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IT IS FURTHER ORDERED that the lis pendens is canceled, released, and expunged.
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James C. Mahan
U.S. District Judge
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IT IS FURTHER ORDERED that defendants record a properly certified copy of this order
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in the real property records of Clark County, Nevada within a reasonable amount of time from the
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date of this order.
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DATED October 26, 2012.
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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge
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