Absolute Business Solutions, Inc. et al v. Mortgage Electronic Registration Sys. Inc (MERS) et al

Filing 57

ORDER denying ECF No. 20 Motion to Consolidate (case 2:15-cv-1325); denying ECF Nos. 24 , 30 Motions for Summary Judgment (case 2:15-cv-1325); denying ECF No. 45 Motion for Sanctions (case 2:15-cv-1325); granting in par t and denying in part ECF No. 11 Motion to Dismiss, with leave to amend in part (case 2:16-cv-1077); granting ECF No. 18 Motion to Dismiss, with leave to amend (case 2:16-cv-1077). Signed by Judge Robert C. Jones on 8/2/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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ABSOLUTE BUSINESS SOLUTIONS, INC., )
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Plaintiff,
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vs.
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MORTGAGE ELECTRONIC
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REGISTRATION SYSTEMS, INC. et al.,
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Defendants.
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_____________________________________ )
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IRMA MENDEZ,
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Plaintiff,
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vs.
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WRIGHT, FINDLAY AND ZAK LLP et al., )
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Defendants.
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2:15-cv-01325-RCJ-NJK

2:16-cv-01077-RCJ-NJK
ORDER

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These related cases arise out of a homeowners’ association foreclosure sale. Several

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motions are pending in two of the cases.

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I.

FACTS AND PROCEDURAL HISTORY

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A.

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In 2005, Irma Mendez purchased real property at 3416 Casa Alto Ave., North Las Vegas,

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Factual Background

Nevada, 89031 (the “Property”) for $315,000, giving the lender a promissory note for $252,792
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and a deed of trust against the Property securing the note. When Mendez became delinquent on

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her monthly assessment fees, Alessi & Koenig (“A&K”) conducted a trustee’s sale to Absolute

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Business Solutions, Inc. (“ABS”) on behalf of Fiesta Del Norte HOA (the “HOA”).

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B.

The ‘314 Case (2:15-cv-314)

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On February 23, 2015, Plaintiff sued A&K, the HOA, Complete Association

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Management Co., LLC (“CAMCO”), ABS, and Amir Hujjuttallah in this Court on eight causes

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of action: (1) wrongful foreclosure; (2) violations of constitutional rights; (3) Nevada Unfair

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Trade Practices Act (“NUTPA”); (4) Fair Debt Collection Practices Act (“FDCPA”); (5) Fraud;

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(6) Unjust Enrichment; (7) Racketeering; and (8) Breach of Contract and Fiduciary Duties.

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CAMCO moved to dismiss for failure to state a claim, and the HOA and A&K joined the

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motion. ABS and Hujjuttallah separately moved to dismiss under Brillhart v. Excess Insurance

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Co., 316 U.S. 491 (1942), and the HOA joined the motion. The Court denied the second motion

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but granted the first motion in part, with leave to amend in part. Specifically, the Court

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dismissed the claims for unjust enrichment, racketeering, breach of fiduciary duty, and the claims

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under Nevada Revised Statutes sections (“NRS”) 598.0915(1) and (15), 42 U.S.C. § 1983, and

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15 U.S.C. §§ 1692f(6), 1692g(c), 1692i(b), and 1692k, without leave to amend. The Court

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dismissed the claim for fraud and the claims under 15 U.S.C. §§ 1692d, 1692e, and 1692j(a),

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with leave to amend. The Court refused to dismiss the claims for wrongful foreclosure and

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breach of contract and the claims under NRS 598A.060(1)(12) and 15 U.S.C. § 1692f(1).

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Mendez filed the First Amended Complaint (“FAC”), listing five causes of action: (1)

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wrongful foreclosure; (2) NUTPA; (3) FDCPA; (4) Fraud; and (5) Breach of Contract. CAMCO

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filed two identical (or nearly identical) motions to dismiss the FAC, and the HOA joined the first

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motion. A&K filed a separate motion to dismiss, which the HOA joined. The Court denied the

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motions as against the wrongful foreclosure claim, based on Mendez’s allegations that
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Defendants wrongfully rejected her attempt to redeem the default before the foreclosure sale.

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The Court denied the motions as against the claim of bid rigging under NRS 598A.060(1)(12),

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based on Mendez’s allegation that the foreclosure sale occurred in the private offices of the

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auctioneer for approximately 10% of the Property’s fair market value. Mendez also alleged

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violations of 15 U.S.C. §§ 1692d, 1692f, and 1692g. The Court dismissed the claims under

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§§ 1692d and 1692g and dismissed the § 1692f claim as against CAMCO but not as against the

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HOA or A&K. The Court dismissed the fraud claim. Finally, the Court permitted the breach of

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contract claim to proceed as against the HOA, based on Mendez’s allegations that the HOA

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failed to obtain the consent of 2/3 of homeowners in the HOA before pursuing foreclosure as

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allegedly required by the CC&R.
The Court granted a motion to amend the FAC in part, and Mendez filed the Second

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Amended Complaint (“SAC”), listing four causes of action: (1) wrongful foreclosure (the HOA,

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CAMCO, A&K, Absolute Collection Services, LLC (“ACS”)); (2) NUTPA bid rigging (A&K,

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Kendrall Williams, ABS, Hujjutallah); (3) FDCPA § 1692f (the HOA and A&K); and (4) Breach

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of Contract (the HOA). Mendez moved for offensive summary judgment on the FDCPA claim,

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and the HOA countermoved for defensive summary judgment against that claim. Three groups

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of defendants separately moved to dismiss. The Court granted the HOA’s motion for summary

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judgment, ruling that it was not a “debt collector” under the FDCPA. The Court dismissed

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Williams, JimiJack Irrevocable Trust, Joel A. Stokes, Sandra F. Stokes, and ACS for failure to

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state a claim. The Court denied leave to amend to plead quiet title actions against any of those

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parties, because it was clear that Mendez had already filed such a claim in another case pending

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in the District.

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C.

The ‘1325 Case (2:15-cv-1325)

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Before Mendez filed the ‘314 Case in this Court, ABS had sued Mendez, Mortgage

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Electronic Information Systems, Inc. (“MERS”), and Bank of America, N.A. (“BOA”) in state

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court to quiet title to the Property. A&K filed a Complaint in Interpleader in Intervention,

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naming Mendez, James McCord, BOA, and Crossbox as defendants in interpleader. Federal

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National Mortgage Association (“Fannie Mae”) intervened as a defendant and removed on July

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13, 2015, making the ‘1325 Case the second case filed in or removed to this District. Fannie

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Mae counterclaimed to quiet title and for unjust enrichment. The Federal Housing Finance

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Agency (“FHFA”), who intervened as Fannie Mae’s conservator, also counterclaimed to quiet

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title. Judge Mahan denied Mendez’s motion for a preliminary injunction to enjoin the present

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owners from distributing any monies collected from the current tenant.

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D.

The ‘1077 Case (2:16-cv-1077)

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On May 13, 2016, Mendez sued Fannie Mae’s attorneys Wright, Findlay and Zak LLP

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(“WFZ”), Seterus, Inc., Fannie Mae, BOA, Joel and Sandra Stokes, and JimiJack in this Court

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variously for quiet title, slander of title, fraud, violation of the Dodd–Frank Act, negligence,

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declaratory relief, FDCPA violations, Nevada Unfair Business Practices Act violations, and

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breach of contract.

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E.

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In the ‘1325 Case, Mendez has filed a motion for summary judgment, asking the Court to

Pending Motions

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set aside the foreclosure sale or ordering A&K to release the funds from the sale to Mendez.

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ABS has also filed a motion for summary judgment, asking the Court to declare that the HOA

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sale of the Property extinguished Mendez’s interest in the Property and that ABS’s title in the

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Property is superior to Mendez’s. Mendez has also asked the Court to sanction Fannie Mae’s

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attorneys for various acts in representing Fannie Mae, e.g., recording certain documents

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concerning the Property.
In the ‘1077 Case, Seterus and WFZ have moved to dismiss, and Mendez has moved to

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dismiss counterclaims by the Stokeses and JimiJack for abuse of process and conspiracy to

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commit abuse of process.

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II.

LEGAL STANDARDS

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A.

Dismissal for Failure to State a Claim

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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).

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A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a
plaintiff must plead facts pertaining to his own case making a violation “plausible,” not just
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“possible.” Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009) (citing Twombly, 550 U.S. at 556)

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(“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.”). That is,

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under the modern interpretation of Rule 8(a), a plaintiff must not only specify or imply a

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cognizable legal theory (Conley review), but also must allege the facts of his case so that the

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court can determine whether the plaintiff has any basis for relief under the legal theory he has

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specified or implied, assuming the facts are as he alleges (Twombly-Iqbal review). Put

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differently, Conley only required a plaintiff to identify a major premise (a legal theory) and

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conclude liability therefrom, but Twombly-Iqbal requires a plaintiff additionally to allege minor

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premises (facts of the plaintiff’s case) such that the syllogism showing liability is logically

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complete and that liability necessarily, not only possibly, follows (assuming the allegations are

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true).

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“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.

Summary Judgment

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A court must grant summary judgment when “the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if

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there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See

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id. A principal purpose of summary judgment is “to isolate and dispose of factually unsupported

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claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
In determining summary judgment, a court uses a burden-shifting scheme. The moving

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party must first satisfy its initial burden. “When the party moving for summary judgment would

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bear the burden of proof at trial, it must come forward with evidence which would entitle it to a

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directed verdict if the evidence went uncontroverted at trial.” C.A.R. Transp. Brokerage Co. v.

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Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citation and internal quotation marks

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omitted). In contrast, when the nonmoving party bears the burden of proving the claim or

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defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate

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an essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving

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party failed to make a showing sufficient to establish an element essential to that party’s case on

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which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24.

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If the moving party fails to meet its initial burden, summary judgment must be denied and

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the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co.,

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398 U.S. 144 (1970). If the moving party meets its initial burden, the burden then shifts to the

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opposing party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v.
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Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute,

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the opposing party need not establish a material issue of fact conclusively in its favor. It is

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sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the

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parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

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Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid

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summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor

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v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the

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assertions and allegations of the pleadings and set forth specific facts by producing competent

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evidence that shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S.

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at 324.

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At the summary judgment stage, a court’s function is not to weigh the evidence and

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determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477

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U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are

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to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely

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colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50.

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Notably, facts are only viewed in the light most favorable to the nonmoving party where there is

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a genuine dispute about those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). That is, even if

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the underlying claim contains a reasonableness test, where a party’s evidence is so clearly

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contradicted by the record as a whole that no reasonable jury could believe it, “a court should not

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adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id.

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III.

ANALYSIS

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A.

The Motions in the ‘1325 Case

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Fannie Mae’s and FHFA’s Motion to Consolidate

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Movants ask the Court to consolidate the ‘1325 Case into a putative class action pending

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before Chief Judge Navarro. Movants have brought that class action for a declaration against a

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defendant class that 12 U.S.C. § 4617(j)(3) preempts state law foreclosure sales insofar as such

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sales purport to destroy any interest held by Movants. The Court denies the motion. That issue

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is only one of many in the present case, and this Court has agreed with Chief Judge Navarro’s

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analysis of the issue in other cases. Consolidation of the present case will be judicially

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uneconomical, as this case and two related cases concern many claims and issues irrelevant to

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the preemption issue.

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2.

Mendez’s and ABS’s Motions for Summary Judgment

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The Court denies Mendez’s motion for two reasons. Mendez has filed no pleading

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asking the Court to grant her any of the alternative relief she seeks (reversal of the sale or return

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of monies). Mendez is only a party to the ‘1325 Case in the capacity of a quiet title defendant.

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At most, then, the Court could grant her defensive summary judgment against ABS’s quiet title

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claim against her. But the Court will not do that, because the state court already denied

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defensive summary judgment to Mendez on January 27, 2015 before the case was removed,

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finding there to be genuine issues of material fact. (See Hr’g Tr., ECF No. 3-9, at 5 in Case No.

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2:15-cv-1325; Order, ECF No. 3-10, at 97 in Case No 2:15-cv-1325).

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The Court also denies ABS’s motion for offensive summary judgment on the quiet title

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claim. Even assuming no statutory irregularities in the foreclosure sale, there is sufficient

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evidence of commercial unreasonableness in the sale to put the issue before a jury. The trustee’s

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sale was for $20,600. (See Trustee’s Deed, ECF No. 30-2). The Property was worth roughly
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eight times that amount, even assuming it had lost half its value by the time of the sale in 2013

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since its purchase for $315,000 in 2005. That is enough to put the issue to a jury under Levers v.

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Rio King Land & Inv. Co., 560 P.2d 917, 919–20 (Nev. 1977).

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3.

Mendez’s Motion for Sanctions

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The Court denies this motion. Mendez complains of WFZ’s “fraudulent unauthorized

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conveyances of documents against borrower’s chain of title on her security instrument.” Mendez

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cites only former Nevada Supreme Court Rule 173 concerning fairness to parties and counsel.

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Moreover, her complaints do not concern activity in this Court. The motion ultimately goes to

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the merits of the claims.

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B.

The Motions in the ‘1077 Case

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1.

Seterus’s and WFZ’s Motion to Dismiss

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Movants first argue that Mendez’s claims in the ‘1077 Case were compulsory

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counterclaims or crossclaims in the ‘1325 Case. Counterclaims must be brought in the original

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case if they “arise[] out of the transaction or occurrence that is the subject matter of the opposing

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party’s claim; and do[] not require adding another party over whom the court cannot acquire

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jurisdiction.” Fed. R. Civ. P. 13(a)(1)(A)–(B). Crossclaims may be brought in the original case

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if they “arise[] out of the transaction or occurrence that is the subject matter of the original action

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or of a counterclaim, or if the claim relates to any property that is the subject matter of the

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original action.” Fed. R. Civ. P. 13(g).

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The “original case” here is the ‘1325 Case. There, ABS sued Mendez, MERS, and BOA

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to quiet title. In the ‘1077 Case, Mendez has sued WFZ, Seterus, Inc., Fannie Mae, BOA, Joel

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and Sandra Stokes, and JimiJack for quiet title and other acts arising out of the foreclosure of the

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Property and subsequent events related to it. The Court finds that Mendez’s claims in the ‘1077

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Case were not compulsory in the ‘1325 Case, because only claims against ABS were compulsory
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in that case. ABS is not a defendant in the ‘1077 Case. And under Rule 13(g), crossclaims are

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permissive. The risk of inconsistent rulings does not require the Court to dismiss any claims in

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the ‘1077 Case under any other doctrine, because the cases are now all pending before the same

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Court. The Court will adjudicate the first-filed claims in the case of any conflict, and the later-

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filed claims will then be precluded as a matter of law.

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Movants next argue that the fraud claim is not pled with particularity, as required under

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Rule 9(b). The elements of common law fraud in Nevada are:

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1. A false representation made by the defendant;

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2. Defendant’s knowledge or belief that the representation is false (or insufficient
basis for making the representation);

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3. Defendant’s intention to induce the plaintiff to act or to refrain from acting in
reliance upon the misrepresentation;

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4. Plaintiff’s justifiable reliance upon the misrepresentation; and

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5. Damage to the plaintiff resulting from such reliance.

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Bulbman, Inc. v. Nev. Bell, 825 P.2d 588, 592 (Nev. 1992) (citing Lubbe v. Barba, 540 P.2d 115,

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117 (Nev. 1975)). Circumstances constituting fraud or mistake must be stated with particularity.

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Fed. R. Civ. P. 9(b). A Plaintiff must plead facts such as “he bought a house from defendant,

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that the defendant assured him that it was in perfect shape, and that in fact the house turned out

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to be built on a landfill . . . .” Warshaw v. Xoma Corp., 74 F.3d 955, 960 (9th Cir. 1996) (quoting

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In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1995) (en banc)).

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Plaintiff alleges that certain documents recorded by various Defendants were

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“fraudulent,” meaning that they contained false information as to ownership, etc., or were

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“forged.” Even if Plaintiff had sufficiently alleged the who, what, where, when, and how of the

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alleged false statements as required by Rule 9(b)—which she has not—she has not alleged that

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she relied on any false documents herself, as required to state a claim for fraud. Plaintiff only
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alleges that she was harmed by the allegedly fraudulent recordings, not that the harm resulted

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from her reliance on their truth. To the contrary, Plaintiff implies that she has never believed any

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of the allegedly fraudulent statements. The Court dismisses this claim, with leave to amend.
Movants next argue that the claim for violations of the “Dodd–Frank Act” fails to state a

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claim because it does not identify any section of code. They argue that leave to amend should

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not be granted because the Dodd-Frank Wall Street Reform and Consumer Protection Act

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created no private right of action. The Court agrees. See, e.g., Levine v. Entrust Grp., Inc., No.

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C12-03959, 2013 WL 1320498, at *7 (N.D. Cal. Apr. 1, 2013).
Movants next argue that Mendez fails to state a claim under the FDCPA because the

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affirmative defense of the statute of limitations appears on the face of the Complaint.

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Specifically, Mendez complains of alleged charges for attorney’s fees as collection costs on an

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account statement dated February 19, 2015, but she did not file suit until May 13, 2016, and the

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statute of limitation is one year. See 15 U.S.C. § 1692k(d). The Court agrees and dismisses this

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claim, without leave to amend.

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Finally, Movants argue that the claim under Nevada Revised Statutes section (“NRS”)

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598.0915 fails because there is no private cause of action under that statute. The Court rejects

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that argument under the very authority quoted by Movants:

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NRS Chapter 598 generally provides for a public cause of action for deceptive
trade practices. NRS 41.600, however, provides for a private cause of action by a
person who is a victim of consumer fraud and defines “consumer fraud” to
include “[a] deceptive trade practice as defined in NRS 598.0915 to 598.0925,
inclusive.” NRS 41.600(2)(d).

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Nev. Power Co. v. Eighth Jud. Dist. Ct., 102 P.3d 578, 583 n.7 (Nev. 2004). Movants quote only

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the first sentence of this passage. Movants do not appear to attack the claim under the standards

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of Rules 8(a) or 9(b).

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2.

Mendez’s Motion to Dismiss

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Mendez asks the Court to dismiss the Stokeses’ and JimiJack’s counterclaims for abuse

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of process and conspiracy. Counterplaintiffs allege Mendez has abused the legal process “by her

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actions in instituting this legal action . . . for the improper purpose of annoying, harassing and

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embarrassing” them and that she engaged in a conspiracy to do so with yet unknown persons

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who are allegedly ghostwriting her papers. “[T]he elements of an abuse of process claim are:

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‘(1) an ulterior purpose by the defendants other than resolving a legal dispute, and (2) a willful

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act in the use of the legal process not proper in the regular conduct of the proceeding.’”

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LaMantia v. Redisi, 38 P.3d 877, 879 (Nev. 2002) (quoting Posadas v. City of Reno, 851 P.2d

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438, 444–45 (Nev. 1993) (quoting Kovacs v. Acosta, 787 P.2d 368, 369 (Nev. 1990))). The

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Court will dismiss the counterclaims, with leave to amend. Filing a complaint alone does not

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satisfy the second element of the claim. Land Baron Invs., Inc. v. Bonnie Springs Family Ltd.

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P’ship, 356 P.3d 511, 520 (Nev. 2015).

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Consolidate (ECF No. 20 in Case No.
2:15-cv-1325) is DENIED.
IT IS FURTHER ORDERED that the Motions for Summary Judgment (ECF Nos. 24, 30
in Case No. 2:15-cv-1325) are DENIED.
IT IS FURTHER ORDERED that the Motion for Sanctions (ECF No. 45 in Case No.
2:15-cv-1325) is DENIED.
IT IS FURTHER ORDERED that the Motion to Dismiss (ECF No. 11 in Case No. 2:16cv-1077) is GRANTED IN PART and DENIED IN PART, with leave to amend in part.
IT IS FURTHER ORDERED that the Motion to Dismiss (ECF No. 18 in Case No. 2:16-

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cv-1077) is GRANTED, with leave to amend.

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Dated this 2nd day of July, 2016.
Dated this 12thday of August, 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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