Espiritu v. Capital One, N.A. et al

Filing 25

ORDER. IT IS ORDERED that Plaintiff's Motion to Consolidate for All Purposes 7 is DENIED without prejudice. Signed by Magistrate Judge Peggy A. Leen on 12/9/15. (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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MARTHA S. ESPIRITU,

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Plaintiff,

ORDER

v.

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Case No. 2:15-cv-01933-JAD-PAL

(Mot Consolidate – Dkt. #7)
CAPITAL ONE, N.A.,
Defendants.

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Before the court is Plaintiff’s Motion to Consolidate for All Purposes (Dkt. #7). The

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court has considered the motion, Defendant Pintar Investment Company Residential, L.P.’s

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(“Pintar”) Opposition to Motion to Consolidate (Dkt. #18), and Plaintiff’s Reply (Dkt. #23).

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BACKGROUND
I.

The Complaint.

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The Complaint in this case was filed in state court and removed (Dkt. #1) by Defendant

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Capital One, N.A. (“Capital One”) October 8, 2015. The complaint alleges that Espiritu is the

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owner and resident of real property located at 10659 Mystic Seaport Avenue in Las Vegas,

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Nevada. Complaint (Dkt. #1-1) ¶8. She purchased the property January 17, 2003, and has

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owned and occupied the property since. Id. ¶9. In 2014, she fell behind on her payments on the

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property and worked with the claimed holder of the deed of trust, Capital One, to negotiate

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repayment terms. Id. ¶¶11-12.

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Plaintiff alleges “on information and belief” that Capital One is not the proper holder of

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the underlying note and deed of trust for the property. Id. Each time Espiritu spoke with a

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representative of Capital One, she was assured Capital One was trying to help her and submitted

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in good faith multiple documents to renegotiate terms for payment. Id. ¶¶13-14. However,

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unknown to her, Capital One, through its agent or trustee, Quality, sold the property at a
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foreclosure to Pintar. Id. ¶14. On information and belief, she did not receive proper notice

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pursuant to NRS 107.080, NRS 107.086 and NRS 107.087. Id. ¶15. On information and belief,

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she had over $150,000 in equity in the property at the time of the foreclosure sale. Id. ¶16. She

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received an informal notice that the property had been sold at foreclosure on July 22, 2015. Id.

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¶17. She alleges the informal notice improperly stated the date it was posted.

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these allegations, the complaint asserts claims for wrongful foreclosure, negligence, and seeks a

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declaratory judgment against the Defendants as well as injunctive relief, damages in excess of

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$10,000, statutory damages under NRS 107.080(7), punitive damages, and attorney’s fees and

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costs.

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II.

Id. Based on

The Notice of Removal.

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The notice of removal indicates this case was removed pursuant to 28 U.S.C. § 1332

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because the amount in controversy exceeds $75,000, exclusive of interests and costs, and the

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action is between citizens of different states. Plaintiff’s Petition for Removal (Dkt. #1) ¶6.

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Plaintiff is a citizen and resident of Nevada. Id. ¶7. Capital One is a national association with its

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principal place of business in the Commonwealth of Virginia. Id. The amount in controversy

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exceeds $75,000 because the fair market value of the property involved in Plaintiff’s complaint

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is $216,000. Id. ¶8. The court has supplemental jurisdiction over Plaintiff’s state law claims for

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purported violations of NRS 107.086 and 107.087. Id. ¶9.

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III.

The Motion to Consolidate.

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In the current motion, Espiritu seeks to consolidate this case with a case filed in the

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Eighth Judicial District Court, Case No. A-15-725332-C, Pintar Investment Company

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Residential, L.P. v. Espiritu (“Pintar Complaint”). The Pintar Complaint was filed in state court

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August 25, 2015, and involves the same residential property involved in the foreclosure at issue

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in this action.

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therefore order consolidation of both actions under Fed. R. Civ. P. 42(a), as both actions seek to

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determine the parties’ interests in the subject property.

The Pintar Complaint seeks possession of the property.

The court should

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Pintar opposes the motion to consolidate arguing it is premature. Plaintiff Espiritu filed

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this action in state court on October 27, 2015, after Pintar filed an unlawful detainer action in
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state court September 30, 2015, seeking to evict Espiritu and gain possession of the property.

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Espiritu filed a petition to remove Pintar’s case against her November 10, 2015, which is now in

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this court as Case No. 2:15-cv-02146-JCM-PAL. The opposition appears to argue that this

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motion to consolidate is premature because Pintar intends on filing an opposition to Espiritu’s

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removal of Case No. 2:15-cv-02146-JCM-PAL, and the court has not yet had an opportunity to

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decide its opposition to the removal.

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Espiritu replies that both cases should be consolidated under Fed. R. Civ. P. 42(a)

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because they both involve a common question of law or fact. In both actions, the parties seek to

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determine the interests in the property related to the foreclosure, and seek possession of the

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property. Espiritu’s rights under NRS 107 must be determined in this case before the claims in

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the unlawful detainer action. The court has now stricken Pintar’s objection to removal in the

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second filed action as a fugitive document. If the matters are not consolidated, the parties will

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incur additional costs and expenses and run the risk of facing two inconsistent results.

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“Moreover, if the matters are not consolidated, Espiritu may need to seek a motion to consolidate

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the Second Action in state court, with the Initial Action which will likely be Removed to this

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Initial Action anyway.”

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Espiritu also argues that the second action is improper because it should have been filed
as a counterclaim in this, first filed action.
DISCUSSION

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A review of the docket reflects that Defendant Capital One, N.A. was served with the

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complaint and filed a Motion to Dismiss (Dkt. #5) as its first responsive pleading. Pintar filed an

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Answer (Dkt. #22) on November 20, 2015, and on November 30, 2015, Quality Loan filed a

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Joinder (Dkt. #24) to Capital One’s motion to dismiss. The motion to dismiss argues Plaintiff’s

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claims for wrongful foreclosure and negligence are barred as a matter of law because Plaintiff

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admits that she defaulted on her mortgage payments and failed to tender payments when due.

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Under Nevada law, the Plaintiff may not bring a wrongful foreclosure action if she was in default

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on her mortgage obligations. The motion to dismiss also argues that her negligence claim must

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be dismissed to the extent it relies on “negligent foreclosure” as its basis. Finally, injunctive and

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declaratory relief are remedies, not claims.

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Pintar has now filed a motion to remand the second filed action, Case No. 2:15-cv-02146-

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JCM-PAL. The motion to remand argues this court lacks subject matter jurisdiction under the

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“home state” exception to diversity, and because the amount in dispute does not exceed $75,000

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as no monetary judgment is sought, only right to possession of the property. Pintar also argues

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that there is no federal question jurisdiction in an unlawful detainer action which is strictly a

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matter of state law.

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Having reviewed the papers on file in both actions, the court has serious reservations

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about whether this court has subject matter jurisdiction over the second filed action. The court

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also has serious reservations about whether Plaintiff’s complaint states a claim on which relief

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may be granted given her admission that prior to foreclosure she was in default on her loan

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obligations. Accordingly,

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IT IS ORDERED that Plaintiff’s Motion to Consolidate for All Purposes (Dkt. #7) is
DENIED without prejudice.
DATED this 9th day of December, 2015.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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