Brannan v. Bank of America, et al

Filing 41

ORDER that 4 Motion to Dismiss is GRANTED. FURTHER ORDERED that Plaintiff's Complaint, (ECF No. 1-2), is DISMISSED without prejudice. Plaintiff shall have twenty-one days from the date of this Order to file an amended complaint. FURTHER ORDERED that 36 Motion to Dismiss Mediation and Findings is DENIED as moot. Signed by Chief Judge Gloria M. Navarro on 11/15/16. (Copies have been distributed pursuant to the NEF - MMM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

MICHAEL BRANNAN,
4

Plaintiff,

5

vs.

6
7

BANK OF AMERICA; NATIONAL
DEFAULT SERVICING CORPORATION,

8

Defendants.

9

)
)
)
)
)
)
)
)
)
)

Case No.: 2:16-cv-01004-GMN-GWF
ORDER

Pending before the Court is the Motion to Dismiss, (ECF No. 4), filed by Defendant

10
11

Bank of America, N.A. (“BANA”). Plaintiff Michael Brannan (“Plaintiff”) filed a Response,

12

(ECF No. 21), and BANA filed a Reply, (ECF No. 23). For the reasons discussed below,

13

BANA’s Motion to Dismiss is GRANTED.1

14

I.

BACKGROUND
The instant dispute arises from BANA’s attempts to foreclose on real property located at

15
16

2204 Night Parrot Avenue, North Las Vegas, NV 89148 (“Property”). (Compl. ¶¶ 7, 20, ECF

17

No. 1-2). On August 6, 2007, Plaintiff purchased the Property, giving lender Countrywide

18

Bank, FSB, a promissory note for $282,478.00 secured by a Deed of Trust against the Property.

19

(Ex. A to MTD, ECF No. 4-1). On July 20, 2011, Countrywide Bank, FSB, assigned the Deed

20

of Trust to BAC Home Loans Servicing, LP. (Ex. B to MTD, ECF No. 4-1). BANA is

21

successor to BAC Home Loans Servicing, LP, by merger. (Ex. C to MTD, ECF No. 4-1).
After Plaintiff defaulted on the Loan, BANA recorded a Notice of Default against the

22
23

Property on September 18, 2013. (Ex. D to MTD, ECF No. 4-1). Plaintiff requested mediation

24
25

1

Also pending before the Court is Plaintiff’s Motion to Dismiss the June 27, 2016 mediation regarding the
Property as well as the resulting findings. (See Pl.’s MTD, ECF No. 36). Because the Court dismisses Plaintiff’s
Complaint, the Court denies Plaintiff’s Motion as moot.

Page 1 of 5

1

pursuant to Nevada’s foreclosure mediation program, and mediation occurred on February 4,

2

2014. (Compl. ¶ 11). Following mediation, the mediator declined to issue a certificate of

3

foreclosure allowing the foreclosure to proceed. (Ex. 2 to Compl. at 16, 20, ECF No. 1-2).

4

Rather than continue to pursue foreclosure under the September 18, 2013 Notice of

5

Default, BANA recorded a second Notice of Default on March 16, 2016. (Ex. E to MTD, ECF

6

No. 4-1). Plaintiff alleges that BANA’s most recent attempt to foreclose is “in violation of the

7

mediation process.” (Compl. ¶ 20). Further, Plaintiff alleges that he “has experienced great

8

stress and anxiety over the lack of concern and good faith displayed by the Defendant.” (Id.

9

¶ 21).

10

Based on these allegations, Plaintiff alleges the following causes of action against

11

BANA and Defendant National Default Servicing Corporation (“National Default”)2: (1)

12

specific performance; (2) temporary injunctive relief; (3) intentional infliction of emotional

13

distress; (4) declaratory relief; (5) quiet title; (6) breach of the covenant of good faith and fair

14

dealing. (Id. ¶¶ 22–47). In the instant Motion to Dismiss, BANA requests that the Court

15

dismiss all of the claims against it. (MTD 1:21–2:2, ECF No. 4).

16
17
18
2

19
20
21

The Court notes that on June 6, 2016, Defendant National Default Servicing Corporation (“National Default”),
trustee under the Deed of Trust, filed a Declaration of Non-Monetary Status, (ECF No. 13). Under Nevada law,
if the trustee under a deed of trust is named in an action in which the deed of trust is the subject and the trustee
has a reasonable belief that he or she has been named in the action solely in his or her capacity as trustee and not
as a result of any wrongful act or omission made in the performance of his or her duties as trustee, the trustee
may, at any time, file a declaration of nonmonetary status. NRS § 107.029(1). If no party files an objection to
the declaration within fifteen-days,

22
23
24
25

the trustee is not required to participate any further in the action and is not
subject to any money damages or attorney’s fees or costs, except that the trustee
is required to respond to any discovery request as a nonparty participant and is
bound by any court order relating to the deed of trust.
Id. § 107.029(5). No objection was filed to National Default’s Declaration, and the time to do so has passed.
Accordingly, National Default shall be considered a nonmonetary or nominal defendant for the purposes of this
action.

Page 2 of 5

1

II.

2

LEGAL STANDARD
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon

3

which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

4

555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on

5

which it rests, and although a court must take all factual allegations as true, legal conclusions

6

couched as a factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule

7

12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements

8

of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain

9

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

10

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A

11

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

12

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This

13

standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

14

If the court grants a motion to dismiss for failure to state a claim, leave to amend should

15

be granted unless it is clear that the deficiencies of the complaint cannot be cured by

16

amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d655, 658 (9th Cir. 1992). Pursuant to

17

Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in the

18

absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the

19

movant, repeated failure to cure deficiencies by amendments previously allowed, undue

20

prejudice to the opposing party by virtue of allowance of the amendment, futility of the

21

amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

22

III.

23

DISCUSSION
As a preliminary matter, Plaintiff’s Response, (ECF No. 21), fails to address BANA’s

24

substantive arguments regarding Plaintiff’s claims for specific performance, intentional

25

infliction of emotional distress, or breach of covenant of good faith and fair dealing. Instead,

Page 3 of 5

1

Plaintiff’s Response merely levels additional factual allegations against BANA without

2

addressing the merits of BANA’s Motion. (See Resp. 3:10–15). Because Plaintiff has failed to

3

respond properly to BANA’s Motion, the Motion pertaining to these claims can be granted. See

4

L. R. 7-2(d).

5
6

Turning to Plaintiff’s remaining claims, the Court finds that Plaintiff’s Complaint fails to
state a claim upon which relief can be granted.

7

A.

8

Under Nevada law, a claim to quiet title “may be brought by any person against another

Quiet Title

9

who claims an estate or interest in real property, adverse to the person bringing the action, for

10

the purpose of determining such adverse claim.” Chapman v. Deutsche Bank Nat’l Trust Co.,

11

302 P.3d 1103, 1106 (Nev. 2013). A quiet title claim “does not require any particular elements,

12

but each party must plead and prove his or her own claim to the property in question.” Id.

13

Plaintiff has failed to state a claim for quiet title because he fails to allege that the

14

underlying loan is not in default. See Bergsrud v. Bank of Am., N.A., No. 2:13-cv-998 JCM

15

VCF, 2014 WL 664662, at *3 (D. Nev. Feb. 19, 2014) (“Plaintiff’s first cause of action for both

16

quiet title and wrongful foreclosure fails as a matter of law because plaintiff does not allege that

17

the loan was not in default at the time of the foreclosure sale.”). Indeed, Plaintiff admits in his

18

Response that the Complaint “does not specifically allege that the underlying note was not in

19

default.” (Resp. 4:23–24, ECF No. 21). Accordingly, the Court dismisses Plaintiff’s claim for

20

quiet title without prejudice.

21

B.

22

Plaintiff’s Fourth Claim for Relief titled “Declaratory Relief” seeks “a judicial

Declaratory Relief and Injunction

23

declaration in which 1) [the Court find] that any delinquency in mortgage payments occurred at

24

the direction of [BANA] during the course of the loan modification process.” (Compl. ¶ 35).

25

Plaintiff also asks that the Court “orders the Defendant to correct any negative notations on the

Page 4 of 5

1

Plaintiff’s credit report which it may have issued during the course of the loan modification

2

process.” (Id.). In addition, Plaintiff’s Second Claim for Relief seeks “temporary, preliminary

3

and injunctive relief to enjoin” foreclosure against the Property during the pendency of this

4

action. (Id. ¶ 28).
“[D]eclaratory relief and permanent injunction are remedies that may be afforded to a

5
6

party after he has sufficiently established and proven his claims; they are not separate causes of

7

action.” Freeto v. Litton Loan Serv. LP, No. 3:09-cv-00754-LRH, 2011 WL 112183, at *3 (D.

8

Nev. Jan. 12, 2011). Accordingly, because the underlying causes of action have been

9

dismissed, the Court similarly dismisses any remedies that would have been available against

10

BANA.

11

IV.

12
13
14

CONCLUSION
IT IS HEREBY ORDERED that BANA’s Motion to Dismiss, (ECF No. 4), is

GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint, (ECF No. 1-2), is

15

DISMISSED without prejudice. Plaintiff shall have twenty-one days from the date of this

16

Order to file an amended complaint. Failure to file an amended complaint by this date shall

17

result in the dismissal of Plaintiff’s claims with prejudice.

18
19
20

IT IS FURTHER ORDERED that Plaintiff’s Motion to Dismiss Mediation and
Findings, (ECF No. 36), is DENIED as moot.
15
DATED this _____ day of November, 2016.

21
22

___________________________________

23

Gloria M. Navarro, Chief Judge
United States District Judge

24
25

Page 5 of 5