Carmona-Licon v. Federal Home Loan Mortgage Corporation et al

Filing 20

ORDER that 5 and 11 Motions to Dismiss are GRANTED. FURTHER ORDERED that 7 Motion to Voluntarily Dismiss is DENIED as moot. FURTHER ORDERED that the clerk shall enter judgment and close the case. Signed by Chief Judge Robert C. Jones on 9/16/13. (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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JESUS H. CARMONA-LICON,
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Plaintiff,
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vs.
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FEDERAL HOME LOAN MORTGAGE
CORP. et al.,

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Defendants.

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2:13-cv-00703-RCJ-PAL
ORDER

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This is a residential foreclosure avoidance case. Pending before the Court are Defendants’
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separate Motions to Dismiss (ECF Nos. 5, 11) and Plaintiff’s Motion to Voluntarily Dismiss (ECF
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No. 7) as to one Defendant. For the reasons given herein, the Court grants the motions to dismiss
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and denies the motion to dismiss voluntarily as moot.
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I.

FACTS AND PROCEDURAL HISTORY

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Plaintiff Jesus H. Carmona-Licon gave lender Nevada Federal Credit Union (“NFCU”) a
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$235,000 promissory note (the “Note”) to purchase or refinance real property at 3120 E. University
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Ave., Las Vegas, NV 89121 (the “Property”), secured by a deed of trust (the “DOT”) with trustee
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Nevada Title Co. and nominee/beneficiary Mortgage Electronic Registration Systems, Inc.
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(“MERS”). (See DOT 1–3, June 13, 2007, ECF No. 5-1). MERS assigned the Note (in its capacity
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as NFCU’s nominee) and the DOT (in its capacity as beneficiary thereof) to Bank of America, N.A.

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(“BOA”). (See Assignment, Oct. 21, 2011, ECF No. 5-2). BOA then assigned the Note and DOT to

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M&T Bank. (See Assignment, Dec. 30, 2011, ECF No. 5-3). Bayview Loan Servicing, LLC

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(“Bayview”) then, as purported attorney-in-fact for M&T Bank, substituted MTC Financial, Inc.,

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d.b.a. Trustee Corps as trustee. (See Substitution, Feb. 9, 2012, ECF No. 5-4). Trustee Corps then

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filed a Notice of Breach and Default and Election to Cause Sale of Real Property Under Deed of

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Trust (the “DOT”). (See DOT, June 4, 2012, ECF No. 5-5). The state Foreclosure Mediation

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Program (“FMP”) mediation did not result in a mediation agreement, and foreclosure was permitted

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to proceed. (See FMP Certificate, Nov. 6, 2012, ECF No. 5-6). Trustee Corps noticed a trustee’s sale

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for January 11, 2013. (See Notice of Trustee’s Sale, Dec. 7, 2012, ECF No. 5-7). Silver Liege

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Development, LLC purchased the Property at the trustee’s sale for $159,000. (See Trustee’s Deed

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Upon Sale, Jun. 15, 2013, ECF No. 5-8).

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Plaintiff sued the Federal Home Loan Mortgage Corp. (“Freddie Mac”) and RBS Greenwich

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Capital (“RBS”) in pro se in state court for intentional and negligent misrepresentation. (See Compl.,

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Jan. 17, 2013, ECF No. 1-5). RBS removed and moved to dismiss. Plaintiff moved to dismiss RBS

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voluntarily. Freddie Mac separately moved to dismiss.

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II.

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LEGAL STANDARDS
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the

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claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

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(1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

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that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6)

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tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th

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Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim,

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dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally

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cognizable claim and the grounds upon which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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555 (2007). In considering whether a complaint is sufficient to state a claim, a court takes all

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material allegations as true and construe them in the light most favorable to the plaintiff. See NL

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Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). A court, however, is not required to accept

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as true unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with

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conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own case

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making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009)

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(citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.”). In other words, under the modern interpretation of Rule 8(a), a plaintiff must

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not only specify a cognizable legal theory (Conley review), he must also plead the facts of his own

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case so that the court can determine whether he has any basis for relief under the legal theory he has

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specified, assuming the facts are as he alleges (Twombly-Iqbal review).

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“Generally, a district court may not consider any material beyond the pleadings in ruling on a

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Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may

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be considered.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.

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1990) (citation omitted). Similarly, “documents whose contents are alleged in a complaint and

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whose authenticity no party questions, but which are not physically attached to the pleading, may be

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considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss

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into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under

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Federal Rule of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v.

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S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).

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III.

ANALYSIS

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Plaintiff alleges in the Complaint that he justifiably relied on Defendants’ “falsified

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assignments” and the securitization of the mortgage. The Court rejects this claim. Plaintiff’s only

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possible reliance was upon statements inducing him to enter into the mortgage, not upon anything

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Defendants did with their interests in the mortgage after it was given. There is no impropriety

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evident in the assignments of the Note and DOT, or in the bare fact of securitization, and Plaintiff

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alleges no fraud in the inducement. The fraud Plaintiff does allege is irrelevant to the terms of the

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mortgage. The Court perceives no impropriety in the foreclosure. Furthermore, Plaintiff has not

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timely responded to either motion to dismiss, which constitutes consent to granting them. See Local

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R. 7-2(d). Court therefore grants the motions to dismiss and denies the motion to dismiss voluntarily

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as moot.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motions to Dismiss (ECF Nos. 5, 11) are GRANTED.

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IT IS FURTHER ORDERED that the Motion to Voluntarily Dismiss (ECF No. 7) is

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DENIED as moot.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS SO ORDERED.

13 Dated this 14th day ofof September, 2013.
Dated this 16th day August, 2013.
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_____________________________________
ROBERT C. JONES
United States District Judge

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