Barron et al v. The Bank of New York Mellon et al

Filing 60

ORDER granting 55 Motion to Dismiss with prejudice. Signed by Judge Andrew P. Gordon on 2/15/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROBERT BARRON AND JOHN TURCO,

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Plaintiffs,

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v.
THE BANK OF NEW YORK MELLON, et
al.,

Case No. 2:15-cv-00242-APG-GWF
ORDER GRANTING MOTION TO
DISMISS
(ECF No. 55)

Defendants.

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I have twice previously dismissed the plaintiffs’ complaint because the plaintiffs filed

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bankruptcy but did not report any of the claims in this complaint during their bankruptcy

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proceedings. ECF No. 39 at 2–5; ECF No. 51 at 1. I also ruled that even if the plaintiffs were not

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judicially estopped by their failure to include these claims in their bankruptcies, the plaintiffs
lacked standing to bring some of their claims and they failed to respond to the motion to dismiss
with respect to other claims. ECF No. 39 at 5–7; ECF No. 51 at 1. I twice granted the plaintiffs
leave to amend. ECF No. 39 at 8; ECF No. 51 at 2. In the most recent dismissal, I wrote that

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despite the plaintiffs’ failure to address the defects identified in the first dismissal, “because the

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plaintiffs are pro se, I will grant them one final opportunity to amend if they can do so.” ECF No.

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51 at 2.

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The plaintiffs again filed an amended complaint that is nearly identical to the original
complaint. ECF No. 52. The defendants move to dismiss on the same grounds as their prior
motions, arguing that the amendments are superficial and do not cure the defects identified in my
prior Orders.

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The plaintiffs repeat their contention that they did not know at the time of their

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bankruptcy proceedings that the assignment conflicted with the prospectus. For the reasons I

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stated previously, this defense is insufficient to prevent application of judicial estoppel. See ECF

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No. 39 at 4-5. The plaintiffs complain that “[i]t is overly broad and unduly burdensome for

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anyone to require persons looking for bankruptcy protection to list every known and unknown

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person and/or entity on the planet.” ECF No. 57 at 3. However, a title report on the plaintiffs’
property would have shown the transaction in question. As stated in my prior order, “[t]he
assignment was filed as a public record months before plaintiffs’ bankruptcy. The prospectus

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that is allegedly in conflict with the assignment was in existence at least as early as 2005.

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Perhaps plaintiffs had insufficient information to put them on notice of the alleged deficiencies in

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the assignment. But there are no facts in the complaint indicating this is the case.” ECF No. 39 at

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5. The plaintiffs have not added any facts to the third amended complaint to cure the identified
deficiencies. Even if I could consider facts in the plaintiffs’ opposition, that opposition also does
not state such facts.
Additionally, most of the plaintiffs’ claims suffer from the same standing problems I

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previously identified. Id. at 5–7. The plaintiffs cite to a California case which held a borrower

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had standing to challenge the validity of an assignment. ECF No. 57 at 3–4 (citing Lundy v.

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Selene Fin., LP, 2016 U.S. Dist. LEXIS 35547 (N.D. Cal. Mar. 17, 2016)). Lundy arose under

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California law, however. In Nevada, the law is the opposite, and as I explained previously,
borrowers like the plaintiffs lack standing to challenge assignments. See, e.g., Wood v. Germann,
331 P.3d 859, 861 (Nev. 2014) (“[T]he homeowner, who is neither a party to the PSA nor an

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intended third-party beneficiary, lacks standing to challenge the validity of the loan

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assignment.”). The plaintiffs also lack standing to enforce the internal revenue laws against the

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defendants. ECF No. 39 at 6. The plaintiffs allege in conclusory fashion that the assignment was

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“in direct conflict with the ‘Note.’” ECF No. 42 at 4. But they do not allege a factual basis for

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the alleged conflict or identify what the conflict is.

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The plaintiffs have had two opportunities to amend and failed to meaningfully address the
defects identified, let alone cure them. There is no basis to conclude they could do so if given
another opportunity. I therefore grant the defendants’ motion to dismiss, this time with
prejudice.
IT IS THEREFORE ORDERED that the defendants’ motion to dismiss (ECF No. 55) is

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GRANTED. The plaintiffs’ second amended complaint is dismissed with prejudice. The clerk

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of court shall enter judgment in favor of the defendants and against the plaintiffs.

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DATED this 15th day of February, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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