Woodbury Law, Ltd. v. Bank of America, N.A. et al

Filing 30

IT IS ORDER that Defendants' Motion to Dismiss Plaintiff's Amended Complaint 12 be and same hereby is GRANTED. Plaintiff's Amended Complaint shall be dismissed without prejudice. IT IS FURTHER ORDERED that Defendants' Motion to Dismiss Plaintiff's Complaint 5 is DENIED as moot. Signed by Judge James C. Mahan on 7/1/2015. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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WOODBURY LAW, LTD,

Case No. 2:15-CV-603 JCM (GWF)

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Plaintiff(s),

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ORDER

v.
BANK OF AMERICA, NATIONAL
ASSOCIATION,
Defendant(s).

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Bank of America, N.A.

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and Bank of New York Mellon Corporation

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first amended complaint. (Doc. # 12).
the motion to dismiss. (Doc. # 26). Plaintiff filed a response (doc. # 25), and defendants filed a
reply (doc. # 27).
I.

Background
On September 15, 2005, Andrew Lai executed a promissory note for $999,950.00. (Doc.

# 12, exh. A). The note was secured by a deed of trust in favor of Countrywide Home Loans, Inc.
, and encumbered the real property located at 1999 Alcova Ridge Drive, Las

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Vegas, Nevada 89135. (Doc. # 12, exh. A).1 The deed of trust named Mortgage Electronic

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James C. Mahan
U.S. District Judge

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Defendants ask the court to take judicial notice of doc. # 12, Exhibits A-H. Under Fed.
R. Evid. 201, a court may judicially notice matters of public record. See Mack v. S. Bay Beer
Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986) (abrogated on other grounds by Astoria Federal Sav.
& Loan Ass'n v. Solimino, 501 U.S. 104, 111 S. Ct. 2166 (1991)). Because the court finds that
plaintiff does not establish his standing to bring this complaint, the court need not take judicial
notice of any documents for purposes of this order.

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assigns. (Doc. # 12, exh. A). On September 15, 2009, MERS assigned the deed of trust to New

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York Mellon. (Doc. # 12, exh. B).

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Lai defaulted on the note and deed of trust. On September 15, 2009, Recontrust Company,

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, as substitute trustee, recorded a notice of default and election to sell against

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2010. (Doc. # 12, exh. D). Recontrust recorded a rescission of the election to declare default on

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April 13, 2012. (Doc. # 12, exh. E).

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On June 26, 2013, a substitution of trustee was recorded, naming National Default

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as substitute trustee under the deed of trust. (Doc. #

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12, exh. F). National Default then recorded a notice of default and election to sell against the

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G-H). The notice of default identifies Select as the servicer of the loan. (Doc. # 12, exh. G).

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Plaintiff initiated the instant action in Eighth Judicial District Court for Clark County,

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Nevada, on February 26, 2015, seeking to enjoin the foreclosure sale. (Doc. # 1-1). The state

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1-1 at 27-28).
Defendants removed this case to federal court on April 1, 2015. (Doc. # 1). On April 8,
2015, defendants filed their first motion to dismiss. (Doc. # 5).

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Also on April 8, 2015, plaintiff Woodbury Law, Ltd., filed an amended complaint alleging

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that it obtained title to the property from Lai and is the current owner of the property. (Doc. # 6,

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¶¶ 12-13).2

in action

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rty and choses in action. (Doc. # 6, ¶¶ 14-16).

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Plaintiff alleges that Bank of America and New York Mellon lack standing to foreclose on the

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on to dismiss,

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James C. Mahan
U.S. District Judge

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A chose in action is an intangible personal property right to sue. It confers no present
possession of a tangible object.

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deed of trust, and that the loan Lai obtained was illegal because Lai was charged illegal feels and

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was not given required disclosures. (See doc. # 6).

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Based on these allegations, plaintiff brings claims for (1) preliminary and permanent

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injunctive relief; (2) quiet title; (3) slander of title; (4) violations of Fair Debt Collection Practices

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Act; (5) violation of NRS § 107; (6) an accounting; (7) declaratory relief; (8) negligence; (9)

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negligence per se; (10) breach of the implied covenant of good faith and fair dealing; (11) unjust

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enrichment; (12) violations of Nevada Unfair Lending Practices Act; and (13) violations of the

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Truth in Lending Act and other federal laws. Plaintiff seeks a permanent injunction and a

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declaratory judgment, preventing defendants from foreclosing on the property and monetary

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damages. (Doc. # 6, ¶¶ 74-82).
Defendants now move to

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II.

amended complaint with prejudice.

Legal standard

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Fed. R. Civ. P. 12(b)(6). A properly pled complaint

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

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factual allegations, it de

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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted).

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Twombly, 550 U.S. at

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555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to
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

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

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allegations in the complaint. Id. at 1950. However, legal conclusions are not entitled to the

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assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported by

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only conclusory statements, do not suffice. Id. at 1949. Second, the court must consider whether

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the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is

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James C. Mahan
U.S. District Judge

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facially plausible when the plaintiff's complaint alleges facts that allows the court to draw a

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reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949.
ermit the court to infer more than the mere possibility of

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Id. (internal quotations and alterations omitted). When the allegations in a complaint have not

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crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550

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U.S. at 570.
The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202,

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1216 (9th Cir. 2011). The Starr

st, to be entitled to the presumption of truth,

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allegations in a complaint or counterclaim may not simply recite the elements of a cause of action,

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but must contain sufficient allegations of underlying facts to give fair notice and to enable the

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opposing party to defend itself effectively. Second, the factual allegations that are taken as true

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must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing

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party to be subjected to the expense of discovery and continued l

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III.

Id.

Discussion

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Riley v. Greenpoint Mortg. Funding,

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Inc., 2:10-CV-1873-RLH-RJJ, 2011 WL 1979831, at *3 (D. Nev. May 20, 2011) (citing Fed. R.

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Civ. P. 17(a)). To establish standing to bring a lawsuit, a plaintiff must establish that it suffered

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will

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redress that injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Defendants assert

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complaint alleges that it has standing to bring these claims because it is

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(Doc. # 6, ¶¶ 14-16). Defendants assert that, because plaintiff does not identify how it became

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establishes no factual basis demonstrating its standing to bring these claims. (Doc. # 12 at 4-5).

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James C. Mahan
U.S. District Judge

Plaintiff attaches additional exhibits that were not included with its complaint to attempt to bolster

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its standing. When considering a motion to dismiss, a court may reference only those facts alleged

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within the complaint itself. See Fed. R. Civ. Pro. 12(b); see also In re AgriBio Tech Sec. Litig.,

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No. CV-S-99-144-PMP-LRL, 2000 WL 1277603, at *6 (D. Nev. Mar. 2, 2000) (citing Car

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Carriers, Inc. v. Ford Motor Co.,

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). Plaintiff is a

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barred attorney and is thus familiar with the Federal Rules of Civil Procedure. Accordingly, the

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them.

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Plaintiff is not the borrower on the loan and fails to establish how it suffered any injury as

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a result of the actions alleged in the amended. Instead, plaintiff attempts to establish standing

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Such

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conclusory allegations are insufficient to establish that plaintiff has the right to bring these claims.

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Lai is the only relevant party who had a relationship with Bank of America or New York Mellon

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with respect to this loan and is the only borrower protected by the various statutes upon which

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plaintiff relies. Plaintiff fails to plead any basis upon which the court may determine (1) how

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p

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are even assignable.

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IV.

successor in interest, or (2) whether these claims were properly assigned or

Conclusion
Because plaintiff may be able to

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complaint without prejudice.

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Accordingly,

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dismiss

oc. # 12) be, and the same hereby is, GRANTED.
ed without prejudice.

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...

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...

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...

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...

James C. Mahan
U.S. District Judge

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oc. # 5) be, and the same hereby is, DENIED as moot.

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DATED July 1, 2015.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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