Wriggle v. Ocwen Loan Servicing, LLC et al

Filing 17

ORDER that 5 and 9 Motions to Dismiss are GRANTED with prejudice. Signed by Judge Miranda M. Du on 5/8/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DAVID EDWARD WRIGGLE JR.,

Case No. 2:12-cv-01793-MMD-GWF

Plaintiff,

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ORDER
v.

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OCWEN LOAN SERVICING, LLC, et al.,

(Defendants’ Motions to Dismiss
– dkt. nos. 5 and 9)

Defendants.

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I.

SUMMARY
Before the Court are Defendants’ Motions to Dismiss. (Dkt. nos. 5 and 9.) For

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the reasons set forth below, Defendants’ Motions are granted.

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II.

BACKGROUND

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This matter was brought pro se by Plaintiff David Edward Wriggle, Jr. concerning

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his home located at 1508 Glensora Drive, North Las Vegas, Nevada 89031 (“the

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Property”). Plaintiff does not allege that he is in default of his loan obligations, but that

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he “struggles to make his mortgage payment.” (Compl., dkt. no. 1-1 at ¶ 21.) He alleges

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that, as a result, he entered into a tentative loan modification agreement with his lender.

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(Id. at ¶ 23.) Nevertheless, on September 11, 2012, Plaintiff brought this action in state

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court alleging four causes of action against Defendants Ocwen Loan Servicing, LLC

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(“Ocwen”), ReconTrust Company, N.A (“ReconTrust”), and Bank of America, N.A. (“Bank

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of America”): statutory defective foreclosure under NRS § 107.080, common law

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wrongful foreclosure, unjust enrichment, and breach of the implied covenant of good

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faith and fair dealing. (See Compl.)

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Bank of America and ReconTrust timely removed the action to this Court. (See

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dkt. no. 1.) They then moved to dismiss Plaintiff’s Complaint, arguing that Plaintiff fails

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to state claims against them because he was not in default at the time of the Complaint’s

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filing and no notice of default was recorded or served on him. (See dkt. no. 5.) For the

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same reasons, Ocwen also moved to dismiss the Plaintiff’s claims. (See dkt. no. 9.) To

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date, Plaintiff has failed to respond to the Motions.

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III.

LEGAL STANDARD

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide

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“a short and plain statement of the claim showing that the pleader is entitled to relief.”

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Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While

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Rule 8 does not require detailed factual allegations, it demands more than “labels and

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conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v.

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Iqbal, 556 US 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

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“Factual allegations must be enough to rise above the speculative level.” Twombly, 550

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U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient

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factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at

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678 (internal citation omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, a district court must accept as true all

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well-pled factual allegations in the complaint; however, legal conclusions are not entitled

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to the assumption of truth. Id. at 679. Mere recitals of the elements of a cause of action,

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supported only by conclusory statements, do not suffice. Id. at 678. Second, a district

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court must consider whether the factual allegations in the complaint allege a plausible

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claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint

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alleges facts that allow a court to draw a reasonable inference that the defendant is
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liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the

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court to infer more than the mere possibility of misconduct, the complaint has “alleged–

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but not shown–that the pleader is entitled to relief.” Id. at 679 (internal quotation marks

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omitted). When the claims in a complaint have not crossed the line from conceivable to

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plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570.

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A complaint must contain either direct or inferential allegations concerning “all the

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material elements necessary to sustain recovery under some viable legal theory.”

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Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,

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1106 (7th Cir. 1989) (emphasis in original)).

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IV.

DISCUSSION
A review of Defendants’ Motions appears to support dismissal of Plaintiff’s claims.

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Plaintiff does not allege that the Property is currently in foreclosure.

According to

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Defendants, no Notice of Default has been served or recorded evidencing the beginning

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of foreclosure proceedings. As a result, Plaintiff does not appear to have standing to

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bring causes of action that relate to the foreclosure of his home. Although Plaintiff

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alleges that he has been forced to incur costs in seeking modification of his loan

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obligations, he does not state any plausible claims for relief.

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Second, Plaintiff has failed to respond to the Motions. Local Rule 7-2(d) provides

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that failure of a non-moving party to file an opposition to a motion constitutes consent to

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the motion’s granting. Plaintiff’s failure to oppose Defendants’ Motions therefore

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independently warrants their granting.

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V.

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CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Motions to Dismiss (dkt. nos. 5

and 9) are GRANTED with prejudice.
DATED THIS 8th day of May 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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