HSBC Bank USA, National Association v. Lee Family Properties, LLC, Series XVII et al

Filing 46

ORDER Granting in part and Denying in part Copper Sands Homeowners Association, Inc.'s 21 Motion to Dismiss. Signed by Judge James C. Mahan on 3/1/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HSBC BANK USA, et al.,

Case No. 2:16-CV-644 JCM (NJK)

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Plaintiff(s),

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ORDER

v.
LEE FAMILY PROPERTIES, LLC.
SERIES XVII, et al,
Defendant(s).

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Presently before the court is defendant Copper Sands Homeowners Association, Inc.’s (the

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“HOA”) motion to dismiss. (ECF No. 21). Plaintiff HSBC Bank USA, National Association filed

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a response (ECF No. 26), but no reply was filed.1

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I.

This case involves the October 2, 2013, non-judicial foreclosure sale of the real property

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at 8101 West Flamingo Road #1051, Las Vegas, Nevada. (ECF No. 1).
On March 23, 2016, plaintiff filed the underlying complaint, which alleged the following

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Introduction

claims against movant: (1) wrongful foreclosure; (2) negligence; (3) negligence per se; (4) breach
of contract; (5) misrepresentation, (6) unjust enrichment; and (7) tortious interference with
contract. (ECF No. 1).

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The HOA now moves to dismiss plaintiff’s complaint for failure to comply with Nevada

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Revised Statute (“NRS”) 38.310’s mediation requirement. (ECF No. 21).

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James C. Mahan
U.S. District Judge

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Plaintiff appears as Trustee for GSAA Home Equity Trust 2005-6, Asset-Backed
Certificates Series 2005-6. (ECF No. 1).

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II.

Legal Standard

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The court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief

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can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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Although rule 8 does not require detailed factual allegations, it does require more than labels and
conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, a formulaic
recitation of the elements of a cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009) (citation omitted). Rule 8 does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions. Id. at 678–79.

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To survive a motion to dismiss, a complaint must contain sufficient factual matter to “state

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a claim to relief that is plausible on its face.” Id. 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. Id. When a complaint pleads facts that are merely consistent

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with a defendant’s liability, and shows only a mere possibility of entitlement, the complaint does
not meet the requirements to show plausibility of entitlement to relief. Id.
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply
when considering a motion to dismiss. Id. First, the court must accept as true all of the allegations
contained in a complaint. However, this requirement is inapplicable to legal conclusions. Id.

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Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id.

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at 678. Where the complaint does not permit the court to infer more than the mere possibility of

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misconduct, the complaint has “alleged – but not shown – that the pleader is entitled to relief.” Id.

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at 679. When the allegations in a complaint have not crossed the line from conceivable to

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plausible, plaintiff's claim must be dismissed. Twombly, 550 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 court held:
First, to be entitled to the presumption of truth, allegations in a complaint or
counterclaim may not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give fair notice and to enable
the opposing party to defend itself effectively. Second, the factual allegations that
are taken as true must plausibly suggest an entitlement to relief, such that it is not
unfair to require the opposing party to be subjected to the expense of discovery and
continued litigation.

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James C. Mahan
U.S. District Judge

Id.

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III.

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a. Unjust enrichment
As an initial matter, plaintiff’s claim of unjust enrichment is legally unfounded. “Unjust

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Discussion

enrichment is the ‘unjust retention of a benefit to the loss of another, or the retention of money or
property of another against the fundamental principles of justice or equity and good conscience.’”
Galvan v. J.C.H. Enters., Inc., 2011 WL 4501083, No. 2:11-cv-00307-RLH-GWF, at *3 (D. Nev.
Sept. 27, 2011) (quoting Asphalt Prods. Corp. v. All Star Ready Mix, 898 P.2d 699, 701 (Nev.
1995)). To state a valid claim for unjust enrichment, a plaintiff must allege three elements: (1)

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plaintiff conferred a benefit on defendant; (2) defendant appreciated such benefit; and (3)

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defendant accepted and retained the benefit. Id. (citing Topaz Mutual Co. v. Marsh, 839 P.2d 606,

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613 (Nev. 1992)).

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Plaintiff alleges that “HSBC has been deprived of the benefit of the secured McCoy Deed

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of Trust by the actions of the HOA, Lee Properties and fictitious Defendants.” (ECF No. 1 at 19).

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Accordingly, the purported benefits at issue are not those that plaintiff, through its own actions,

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bestowed upon defendant. Thus, the court will dismiss this cause of action as to the instant
defendant.
b. Mediation requirement

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Section 38.310 of the NRS provides, in relevant part:

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No civil action based upon a claim relating to [t]he interpretation, application or
enforcement of any covenants, conditions or restrictions applicable to residential
property . . . or [t]he procedures used for increasing, decreasing or imposing
additional assessments upon residential property, may be commenced in any court
in this State unless the action has been submitted to mediation.

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Nev. Rev. Stat. § 38.310(1). Subsection (2) continues, mandating that a “court shall dismiss any
civil action which is commenced in violation of the provisions of subsection 1.” Nev. Rev. Stat.
§ 38.310(2).
The alleged lack of Nevada Real Estate Division (“NRED”) mediation is the entire basis
of the present motion. (ECF No. 21). However, plaintiff shows that NRED mediation was
completed before defendant submitted the present motion. (ECF Nos. 13, 26-3, 26-4). Therefore,

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defendant’s arguments carry no force.

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James C. Mahan
U.S. District Judge

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IV.

Conclusion

In sum, plaintiff’s unjust enrichment claim, as against the HOA, will be dismissed.
Otherwise, defendant’s motion to dismiss fails because NRED mediation has been completed.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Copper Sands
Homeowners Association, Inc.’s motion to dismiss (ECF No. 21) be, and the same hereby is,
GRANTED IN PART AND DENIED IN PART.
DATED March 1, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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