Suarez-Smith v. Bank of America, N.A. et al

Filing 26

ORDER. IT IS HEREBY ORDERED that 5 , 7 , 11 Defendants' Motions to Dismiss are GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendants and against Plaintiff. Signed by Judge Kent J. Dawson on 3/28/17. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9
10

CARMEN SUAREZ-SMITH,

11

Plaintiff,

12

v.

13

Case No. 2:16-CV-01478-KJD-PAL

BANK OF AMERICA, N.A., et al.,

14

ORDER

Defendants.

15
16

Presently before the Court are Defendants’ Motions to Dismiss (#5/7/11). Plaintiff filed

17

responses in opposition (#16/18/21) to which Defendants replied (#21/23).

18

I. Background

19

On or about December 11, 2006, Borrower Thomas A. Smith (deceased) executed a

20

Promissory Note (“Note”) in favor of predecessor-in-interest Countrywide Home Loans, Inc.

21

(“Countrywide”) in the amount of $375,000.00. As part of the same transation, the Note was and is

22

secured by a Deed of Trust in favor of MERS as nominee for Countrywide, which was recorded on

23

December 20, 2006. On January 24, 2011, an Assignment of Deed of Trust from MERS, as nominee

24

for Countrywide, to Defendant The Bank of New York Mellon (“BNY Mellon”) was recorded. On

25

October 16, 2015, a Substitution of Trustee naming Defendant Sables in the place of original trustee

26

1

Reconstrust Company, N.A., was recorded. On May 25, 2016, the Notice of Default was recorded by

2

Sables on behalf of BNY Mellon.

3

Previously, on or about October 13, 2010, Plaintiff, asserting that she was acting as successor

4

to the estate of the Borrower, sent a letter via certified mail to Bank of America asserting that she

5

was rescinding the loan in accordance with 15 U.S.C. § 1635. On June 22, 2016, she filed the present

6

complaint alleging a claim for rescission under § 1635 against Bank of America and for quiet title

7

against all Defendants. The crux of her claims is that because the loan was securitized there was no

8

consummation of the loan agreement, and therefore, no duty to send notice of rescission within three

9

days or three years of the execution of the loan agreement. Further, with no such “consummation” all

10

later assignments of trustees and recording of notices is without affect. Defendants then filed the

11

present motions to dismiss.

12

II. Standard for a Motion to Dismiss

13

In considering a motion to dismiss, “all well-pleaded allegations of material fact are taken as

14

true and construed in a light most favorable to the non-moving party.” Wyler Summit Partnership v.

15

Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).

16

Consequently, there is a strong presumption against dismissing an action for failure to state a claim.

17

See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted).

18

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

19

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,

20

1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the

21

context of a motion to dismiss, means that the plaintiff has pleaded facts which allow “the court to

22

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

23

The Iqbal evaluation illustrates a two prong analysis. First, the Court identifies “the

24

allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations

25

which are legal conclusions, bare assertions, or merely conclusory. Id. at 1949-51. Second, the

26

Court considers the factual allegations “to determine if they plausibly suggest an entitlement to
2

1

relief.” Id. at 1951. If the allegations state plausible claims for relief, such claims survive the motion

2

to dismiss. Id. at 1950.

3

III. Analysis

4

The purpose of the Truth in Lending Act (“TILA”) is “to assure a meaningful disclosure of

5

credit terms so that the consumer will be able to compare more readily the various credit terms

6

available to him and avoid the uninformed use of credit ...” 15 U.S.C. § 1601(a). In transactions, like

7

the one here, secured by a principal dwelling, TILA gives borrowers an unconditional three-day right

8

to rescind. 15 U.S.C. § 1635(a); see also id. § 1641(c) (extending rescission to assignees). The

9

three-day rescission period begins upon the consummation of the transaction or the delivery of the

10

required rescission notices and disclosures, whichever occurs later. Id. § 1635(a). Required

11

disclosures must be made to “each consumer whose ownership interest is or will be subject to the

12

security interest” and must include two copies of a notice of the right to rescind. 12 C.F.R. §

13

226.23(a)-(b)(1). If the creditor fails to make the required disclosures or rescission notices, the

14

borrower’s “right of rescission shall expire three years after the date of consummation of the

15

transaction.” 15 U.S.C. § 1635(f); see 12 C.F.R. § 226.23(a)(3); Jesinoski v. Countrywide Home

16

Loans, Inc., 135 S. Ct. 790, 792-93 (2015)(notice to lender of intent to rescind must be sent within

17

three years of loan execution).

18

Unfortunately for Plaintiff, it is clear that the underlying note and deed of trust were executed

19

on or about December 11, 2006. Therefore, notice of rescission had to be provided to the lender no

20

later than December 11, 2009. Plaintiff does not dispute that notice was not sent until October 13,

21

2010. The statute of repose established by § 1635 is applied strictly and her claim for rescission must

22

be dismissed. Further, her arguments that the loan was never consummated due to the underlying

23

securitization of the note do not save her action. See Lial v. Bank of Am., N.A., 2016 WL 6405812

24

(D. Nev. October 27, 2016)(alleged securitization of a loan does not invalidate the deed of trust or

25

allow challenge to the loan’s validity)(citing Lial v. Bank of Am. Corp., 2011 WL 5239242 (D. Nev.

26
3

1

Nov. 1, 2011), aff’d Lial v. Bank of Am. Corp., 633 Fed. Appx. 406 (9th Cir. 2016); Beck v.

2

Nationstar Mortg., 2015 WL 6755276 (D. Nev. Nov. 4, 2015)).

3

Finally, in response to Defendants’ arguments that her claims for quiet title must be

4

dismissed, Plaintiff asserts “Plaintiff has standing to raise all of these issues because her loan has

5

been legally rescinded under 15 U.S. Code § 1635 et. seq., not because of some failed securitization

6

theory[.]” Opposition to Motion to Dismiss . . . Filed by Defendant Bank of America, Docket No. 16,

7

p. 6., l. 1-3. However, the Court has already ruled that her October 13, 2010 rescission letter was too

8

late and is barred by the statute of repose. Therefore, Plaintiff’s complaint must be dismissed.

9

Normally, the Court would grant Plaintiff leave to amend the complaint, but it is clear that doing so

10

would be futile.

11

IV. Conclusion

12
13
14
15
16

Accordingly, IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss (#5/7/11) are
GRANTED;
IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendants
and against Plaintiff.
DATED this 28th day of March 2017.

17
18
19
20

_____________________________
Kent J. Dawson
United States District Judge

21
22
23
24
25
26
4