Cortes v. Mortgage Electronic Registration Systems, Inc. (MERS) et al

Filing 13

ORDER Granting 4 and 5 Defendants' Motions to Dismiss with leave to amend complaint. Signed by Judge Kent J. Dawson on 9/3/2014. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GLADYS CORTES,

Case No. 2:14-CV-1235-KJD-VCF

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Plaintiff,
ORDER

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v.
REPUBLIC MORTGAGE LLC, et al.,

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Defendants.

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Before the Court are two motions to dismiss (##4, 5) filed by Defendants Republic

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Mortgage LLC and others. These two motions are substantively identical, and were opposed in

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the same filing by Plaintiff Cortes (#10). Defendants then replied (#12). Plaintiff brought suit

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against Defendants for quiet title and slander of title. Plaintiff asserts that Defendants have no

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valid interest in the property.

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I. Legal Standard: Motion to Dismiss

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

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

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);

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

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detailed factual allegations, it demands more than “labels and conclusions or a formulaic

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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citations omitted). “Factual allegations must be enough to raise a right to relief above the

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speculative level.” Twombly, 550 U.S. at 555. Thus, “[t]o survive a motion to dismiss, a

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complaint must contain sufficient factual matter to ‘state a claim for relief that is plausible on its

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face.’” Iqbal, 556 U.S. at 678 (citation omitted).

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

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

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factual allegations in the complaint; however, legal conclusions or mere recitals of the elements

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of a cause of action, supported only by conclusory statements, are not entitled to the assumption

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of truth. Id. at 678. Second, a district court must consider whether the factual allegations in the

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complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the

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plaintiff’s complaint alleges facts that allow the court to draw a reasonable inference that the

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defendant is liable for the alleged misconduct. Id. at 678. Further, where the complaint does not

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permit the court to infer more than the mere possibility of misconduct, the complaint has

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“alleged—but it has not show[n]—that the pleader is entitled to relief.” Id. at 679 (internal

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quotation marks omitted). Thus, when the claims in a complaint have not crossed the line from

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

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Moreover, “[a]ll allegations of material fact in the complaint are taken as true and construed in

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the light most favorable to the non-moving party.” In re Stac Elecs. Sec. Litig., 89 F.3d 1399,

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1403 (9th Circ. 1996) (citation omitted).

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II. Analysis

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Federal Rule of Civil Procedure 12(b), the basis for dismissal cited by Defendants, refers

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to the failure of a plaintiff’s claims. Unsurprisingly, these claims should supply the

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organizational framework and be the central focus of Defendants’ motion.

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This is not to say that Defendants should have omitted the global theories asserted, but only that

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such arguments are most effective when couched in the context of a specific claim for relief.

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A. Quiet Title

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In Nevada, the elements of a quiet title claim are: “(1) the party seeking to have another

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party’s right to property extinguished, must overcome the presumption in favor of the record

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titleholder, and (2) to allege that he has paid any debt owed on the property.” Olarte v. DHI

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Mortgage, 2:13-CV-0044-LDG-PAL, 2013 WL 5492694, at *2 (D. Nev. Sept. 27, 2013).

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Plaintiff has failed to allege that she has paid the debt owed on the property.

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B. Slander of Title

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In Nevada, the elements of a slander of title claim are: (1) false and malicious

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communications, (2) disparaging to one’s title in land, and (3) causing special damage. Higgins

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v. Higgens, 744 P.2d 530, 531 (Nev. 1987). Malice requires proving that “the defendant knew

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that the statement was false or acted in reckless disregard of its truth or falsity.” Rowland v.

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Lepire, 662 P.2d 1332, 1335 (Nev. 1983). However, where a defendant has reasonable grounds

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for belief in his claim, there is no malice. Id. at 1135. Plaintiff has failed to allege that

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Defendants’ claims were malicious, her strongest statement being that the process through which

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Defendants claim title is “questionable.” This is insufficient. Further, it is unclear that Plaintiff

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has sufficiently pled special damages.

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C. Injunctive Relief

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As correctly noted by Defendants, injunctive relief is simply a specific form of relief, and

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not a claim. As Plaintiff has failed to state claims for which relief may be granted, no relief of

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any type may issue.

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III. Additional Matters

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A. Standing

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Plaintiff makes the highly unusual argument that Defendants’ motions to dismiss should

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be denied because the Defendants lack standing. Plaintiff asserts that Defendants lack standing

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because their interest in the property underlying this matter is “at best questionable.” (#10 at 7).

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To the extent that Plaintiff argues that Defendants lack standing to foreclose “foreclosures in

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Nevada are non-judicial, [meaning that] parties initiating foreclosure proceedings are not

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required to prove standing to foreclose in a court of law before initiating the foreclosure

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process.” Birkland v. Countrywide Home Loans, Inc., 2:11-CV-00502-GMN, 2012 WL 83773

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(D. Nev. Jan. 11, 2012). To the extent that Plaintiff argues that Defendants lack standing to move

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for dismissal of the action, it is axiomatic that bringing a lawsuit grants a named defendant

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standing to challenge the suit.

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B. The Bankruptcy Proceeding

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Both parties try to assert claims of res judicata and other arguments based on the

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bankruptcy court proceeding. Such arguments have been insufficiently briefed.

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IV. Conclusion

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In accordance with the above discussion, Defendants’ two motions to dismiss (##4, 5) are

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HEREBY GRANTED. However, as it is possible for Plaintiff to remedy the defects of her

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complaint, dismissal is without prejudice, and Plaintiff is granted leave to amend the Complaint.

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DATED this 3rd day of September 2014.

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_____________________________
Kent J. Dawson
United States District Judge

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