Valerio v. PNC Mortgage

Filing 9

ORDER Granting 4 Motion to Dismiss. Amended Complaint Due Within 21 Days of This Order. Signed by Judge Robert C. Jones on 3/25/2015. (Copies have been distributed pursuant to the NEF - DC)

Case 2:15-cv-00239-JCM-NJK Document 12 Filed 03/25/15 Page 1 of 5

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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MIGUEL VALERIO,
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Plaintiff,
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vs.
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PNC MORTGAGE,
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Defendant.
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2:15-cv-00234-RCJ-VCF
ORDER

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This case arises out of negotiations between a homeowner and a bank and an impending

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residential foreclosure. Pending before the Court is a Motion to Dismiss (ECF No. 4). Plaintiff

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has not timely responded. For the reasons given herein, the Court grants the motion, with leave

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to amend.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiff Miguel Valerio is the owner of real property at 1804 Griffith Avenue, Las

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Vegas, Nevada 89104. (Compl. 2, ECF No. 1-2). Plaintiff and his wife made timely payments

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on their mortgage for sixteen years but asked Defendant PNC Mortgage for assistance in late

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2013. (Id.). Defendant told Plaintiff he did not qualify for any form of assistance (such as a loan

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modification) because he had not defaulted and that he must default before modification would

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be available. (Id.). Relying on these representations, Plaintiff defaulted and completed

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Defendant’s requests to complete loan modification packets and provide supporting

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documentation over five times. (Id.). Defendant notified Plaintiff each time that there would be

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no modification because the loan beneficiaries had rejected it. (Id.). Defendant offered a deed in

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lieu of foreclosure or a short sale, but Plaintiff does not allege having participated in either of

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those options. (See id.). In July 2014, Defendant notified Plaintiff that there had been some kind

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of agreement (the allegations here are vague), but it was never consummated. (See id. 2–3).

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Defendant has informed Plaintiff it intends to foreclose. (Id. 3).
Plaintiff sued Defendant in state court. The Complaint fairly indicates causes of action

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for intentional misrepresentation and violations of Nevada Revised Statutes section 107.530

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(2013) (the anti-dual-tracking provision). Defendant removed and has now moved to dismiss.

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II.

LEGAL STANDARDS

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A.

Rule 8(a)

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Federal Rule of Civil Procedure 8(a)(2) requires only “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

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12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720

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F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for

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failure to state a claim, dismissal is appropriate only when the complaint does not give the

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defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is

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sufficient to state a claim, the court will take all material allegations as true and construe them in

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the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th

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Cir. 1986). The court, however, is not required to accept as true allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

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

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

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

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(2009) (citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.”). In other words, under the modern interpretation of Rule

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8(a), a plaintiff must not only specify or imply a cognizable legal theory (Conley review), but

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also must plead the facts of his own case so that the court can determine whether the plaintiff has

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any plausible basis for relief under the legal theory he has specified or implied, assuming the

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facts are as he alleges (Twombly-Iqbal review).
“Generally, a district court may not consider any material beyond the pleadings in ruling

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

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complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

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& Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

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whose contents are alleged in a complaint and whose authenticity no party questions, but which

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are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

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motion to dismiss” without converting the motion to dismiss into a motion for summary

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judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule

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

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Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court

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considers materials outside of the pleadings, the motion to dismiss is converted into a motion for

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summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.

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2001).

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B.

Rule 9(b)

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“In alleging fraud or mistake, a party must state with particularity the circumstances

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constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s

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mind may be alleged generally.” Fed. R. Civ. P. 9(b). Under Rule 9(b), a plaintiff must be

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specific enough to give defendants notice of the particular misconduct so that they can defend

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against the charge and not just deny that they have done anything wrong. Vess v. Ciba–Geigy

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Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). “Averments of fraud must be accompanied by

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‘the who, what, when, where, and how’ of the misconduct charged.” Id. A “plaintiff must set

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forth more than the neutral facts necessary to identify the transaction. The plaintiff must set

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forth what is false or misleading about a statement, and why it is false.” Id.

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III.

ANALYSIS
Defendant argues only against the fraud claim. The Court agrees that it is not pled with

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particularity. To allege fraud, Plaintiff must allege the “who, what, when, where, and how” of

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the alleged fraudulent statements. Plaintiff need not allege monetary damages; he seeks

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injunctive relief. The Court will grant leave to amend the fraud claim. A promise to act in the

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future can support a claim of fraud if it can be shown that the promisor had no intention to

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perform at the time he made the promise. See Bulbman, Inc. v. Nev. Bell, 825 P.2d 588, 592

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(Nev. 1992). Defendant does not address the section 107.530 claim.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 4) is GRANTED, and

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the fraud claim is dismissed, with leave to amend within twenty-one (21) days of the entry of this

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Order into the electronic docket. If Plaintiff does not amend the fraud claim, the section 107.530

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claim will proceed alone.

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IT IS SO ORDERED.
Dated this 9th day of March, 2015.
Dated this 25th day of March, 2015.

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_____________________________________
ROBERT C. JONES
United States District Judge

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