Antaredjo v. Nationstar Mortgage et al

Filing 14

ORDER Granting 5 Motion to Dismiss. Signed by Judge James C. Mahan on 1/27/2014. (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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SUTARTO ANTAREDJO,

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2:13-CV-1532 JCM (CWH)

Plaintiff(s),

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v.

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NATIONSTAR MORTGAGE, et al.,

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Defendant(s).

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ORDER

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Presently before the court is defendants Nationstar Mortgage’s and First Horizon Home

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Loan’s motion to dismiss plaintiff Sutarto Antaredjo’s complaint with prejudice. (Doc. #5). Plaintiff

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has responded (doc. #9), and the defendants have replied (doc. #10).

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I.

Background Facts

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The instant dispute concerns property located at 8456 Benicasim Court, Las Vegas, Nevada

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89178 (“the property”). (Doc. #1 at 5). Plaintiff acquired ownership of the property on or around

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December 12, 2005, by obtaining a $405,900 loan from First Horizon Home Loan Corporation

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(“FHHLC”) which was secured with a deed of trust encumbering the property. (Doc. #5 at 2).

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Plaintiff also obtained a $50,700 home equity line of credit from FHHLC, which was secured with

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a junior deed of trust encumbering the property. (Doc. #5 at 2-3).

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Plaintiff filed the instant complaint on July 18, 2013, alleging four causes of action: (1)

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declaratory relief, (2) deceptive or unfair trade practices, (3) fraud, and (4) violations of NRS § 104

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et seq. (UCC). (Doc. #1). In the prayer for relief, plaintiff requests: (1) declaratory relief that the

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James C. Mahan
U.S. District Judge

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defendants cannot collect upon the note, (2) damages in amounts to be proven at trial, (3) damages

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according to statute, and (4) attorneys’s fees and costs. (Doc. #1 at 8-9).

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II.

Legal Standard

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

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be granted.” FED. R. CIV. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain

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statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual

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allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements

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of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted). “Factual

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allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to

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survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to

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relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (citation omitted).

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

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considering motions to dismiss. First, the court must accept as true all well-pled factual allegations

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in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950.

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Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not

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suffice. Id. at 1949. Second, the court must consider whether the factual allegations in the complaint

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allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's

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complaint alleges facts that allows the court to draw a reasonable inference that the defendant is

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liable for the alleged misconduct. Id. at 1949.

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Where the complaint does not permit the court to infer more than the mere possibility of

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misconduct, the complaint has “alleged – but not shown – that the pleader is entitled to relief.” Id.

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(internal quotations omitted). When the allegations in a complaint have not crossed the line from

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conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

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(1)

Motion to Dismiss

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Plaintiff argues in his opposition to the motion to dismiss that the motion is actually one for

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summary judgment and, accordingly, he should be allowed reasonable time to conduct discovery.

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James C. Mahan
U.S. District Judge

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Federal Rule of Evidence 201(b) permits judicial notice of any “fact that is not subject to

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reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction;

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or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be

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questioned.” This court may consider facts subject to judicial notice in deciding a Rule 12(b)(6)

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motion. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 971, 991 (9th Cir. 2009).

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The grant, bargain, sale deed, senior deed of trust, and the junior deed of trust are recorded

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documents in the official records of Clark County, Nevada. Because these documents are officially

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recorded, their accuracy cannot be reasonably questioned and are thus subject to judicial notice.

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Accordingly, the court may take judicial notice of these documents without converting the motion

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to dismiss into a motion for summary judgment.

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(2)

Deceptive or Unfair Trade Practices

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Plaintiff alleges that defendants violated deceptive trade statutes enumerated in NRS §

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598.091 et seq. and NRS § 598A. Defendants argue that this claim fails because it is not pled with

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particularity.

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Fed. R. Civ. P. 9(b) requires that claims for fraud be filed with particularity. Because

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plaintiff’s complaint does not assert the time, place and substance of the fraud and specifically detail

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the defendants’ wrongful acts, the complaint is not plead with particularity. See, e.g., Cooper v.

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Pickett, 137 F.3d 616, 627 (9th Cir. 1997). Moreover, plaintiff consents to the dismissal of his

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second claim in his opposition. (Doc. #9). Accordingly, this claim is dismissed.

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(3)

Fraud

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Plaintiff asserts defendants committed fraud by failing to inform plaintiff that the loan had

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been improperly transferred, assigned, hypothecated, cancelled, securitized, or otherwise

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extinguished without plaintiff’s knowledge or consent.

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Any claim of fraud must be pled with particularity under Federal Rule of Civil Procedure

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9(b). Yourish v. Cal. Amplifier, 191 F.3d 983, 993 (9th Cir. 1999). “The plaintiff must set forth what

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is false or misleading about a statement, and why it is false.” Id. To meet this standard, the plaintiff

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must present details regarding the “time, place, and manner of each act of fraud, plus the role of each

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James C. Mahan
U.S. District Judge

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defendant in each scheme.” Lancaster Com. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405

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(9th Cir. 1991).

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Plaintiff does not plausibly identify an affirmative misrepresentation that either defendant

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made. These allegations are insufficient to meet the heightened pleading requirement for claims of

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fraud under Rule 9(b). Furthermore, this court has held that a borrower lacks standing to challenge

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the validity of an assignment or to enforce the terms of a pooling and servicing agreement (PSA).

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Burd v. JP Morgan Chase, Case No. 2:13-cv-337-JCM-PAL (D. Nev., April 25, 2013). Because

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plaintiff lacks standing to challenge the validity of the assignment, this claim is dismissed.

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(4)

Violations of NRS § 104 et seq. (UCC)

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Plaintiff alleges that defendants violated NRS § 104 et seq. (UCC) by failing to provide a

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proper transfer or assignment of the note or to inform plaintiff of such assignment. Plaintiff claims

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defendants extinguished their authority to collect under the UCC statutes yet failed to inform plaintiff

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of said extinguishment.

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Defendants argue that this fourth claim for relief fails for two reasons. First, because plaintiff

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failed to cite a provision of NRS § 104 that would support his claim that the assignment of the note

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was invalid. Second, because plaintiff lacks standing to challenge the validity of the assignment or

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enforce the terms of the PSA, as the plaintiff is neither a party nor an intended third-party beneficiary

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under either document. See Burd v. JP Morgan Chase, Case No. 2:13-cv-337-JCM-PAL (D. Nev.,

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April 25, 2013).

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It is well established that securitization does not inherently change the “existing legal

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relationship between the parties to the extent that the original parties cease to occupy the roles they

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did at the closing.” Reyes v. GMAC Mortgage, LLC., 2:11–cv–100–JCM–RJJ, 2011 WL 1322775,

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(D.Nev.2011). “Securitization of a loan does not in fact alter or affect the legal beneficiary's standing

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to enforce the deed of trust.” Id. (collecting cases). Because “securitization merely creates a separate

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contract, distinct from plaintiffs' debt obligations[ ] under the note and does not change the

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relationship of the parties in any way, plaintiffs' claims arising out of the securitization fail.” Id. at

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3 (citing Commonwealth Prop. Advocates, LLC v. First Horizon Home Loan Corp., No.

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James C. Mahan
U.S. District Judge

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2:10–cv–375, 2010 WL 4788209, at 4 (D.Utah Nov. 16, 2010) (quotation marks and citation

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omitted)). In addition, the deed of trust clearly states that the loan may be serviced by a third party.

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See Doc. #9, Ex. A.

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Because plaintiff lacks standing to challenge under NRS § 104, this claim is dismissed.
(5)

Derivative Request for Remedies

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Plaintiff requests a declaration from the court that the defendants cannot collect upon the

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note, requests damages in amounts to be proven at trial, damages according to statute, and

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attorneys’s fees and costs.

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Declaratory and injunctive relief are merely remedies, not stand-alone causes of action.

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Whereas defendants’ motion to dismiss is granted in its entirety, plaintiff is not entitled to the

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requested relief.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to

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dismiss (doc. #5) be, and the same hereby is, GRANTED.

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

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DATED January 27, 2014.

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

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