Giampa v. Midfirst Bank et al

Filing 67

ORDER granting ECF Nos. 45 BANA's Motion to Dismiss and 62 MERS' Motion to Dismiss; plaintiff's complaint is dismissed with prejudice; denying as moot ECF Nos. 11 / 12 Motion for Temporary Restraining Order and 49 Motion for Entry of Default; any remaining motions are denied as moot; Clerk directed to enter judgment and close this case. Signed by Judge Miranda M. Du on 11/09/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 VICTORIA GIAMPA, 9 Case No. 2:17-cv-01208-MMD-CWH Plaintiff, v. 10 ORDER 11 MIDFIRST BANK, et al., 12 Defendants. 13 14 I. SUMMARY 15 Pending before the Court are the following motions: Plaintiff Victoria Giampa’s 16 Emergency Ex Parte Application for Temporary Restraining Order, Preliminary 17 Injunction, and Declaratory Relief Prohibiting Defendants from Non-Judicial Foreclosure 18 and Trustee’s Sale of Plaintiff’s Residence Scheduled for September 1, 2017 (ECF No. 19 11);1 Defendants Bank of America, N.A., Countrywide Servicing Corp, Bank of America 20 Corporation, BAC Home Loans Servicing, Recontrust Company N.A., Fannie Mae, 21 Fannie Mae as Trustee for Securitized Trust, Fannie Mae REMIC Pass-Through 22 Certificates 2006-123 Trust’s (collectively, “BANA Defendants”) Motion to Dismiss 23 Plaintiff’s Complaint (“BANA Defendants’ MTD”)2 (ECF No. 45); Plaintiff’s Application for 24 Entry of Default Against Defendant National Default Servicing (ECF No. 49); and 25 Defendants Green Tree Servicing LLC, Ditech Financial LLC, and Mortgage Electronic 26 Registration System’s Motion to Dismiss (“MERS Defendants’ MTD”) (ECF No. 62). 27 28 1Plaintiff 2MidFirst inadvertently filed this document twice. (ECF No. 12.) Bank filed a joinder to BANA Defendants’ MTD. (ECF No. 54.) 1 For the reasons discussed below, BANA Defendants’ MTD and MERS 2 Defendants’ MTD are granted. Therefore, all other pending motions are denied as moot. 3 II. BACKGROUND 4 Plaintiff Victoria Giampa commenced this action on April 28, 2017, against a 5 variety of Defendants including MidFirst Bank, Fannie Mae, Fannie Mae as Trustee for 6 Securitized Trust, Fannie Mae Remic Pass-Through Certificates 2006-123 trust,3 7 Countrywide Servicing Corp, Bank of America Corporation, Bank of America NA, BAC 8 Home Loans Servicing, Reconstruct Company NA, Green Tree Servicing LLC, Ditech 9 Financial LLC, Mortgage Electronic Registration System, and National Default Servicing 10 Corporation. The following facts are taken primarily from the complaint. (ECF No. 1.) 11 Plaintiff took out a mortgage loan with MidFirst Bank (“MidFirst”) in November 12 2006 in the amount of $358,500 to purchase real property located at 1848 Wellington 13 Court, Henderson, Nevada (“the Property). (ECF No. 1-1 at 57.) The Loan was secured 14 by a deed of trust (“DOT”) on the Property. Plaintiff challenges a variety of assignments 15 of the DOT that began as far back as 2007. She also alleges that back in 2009 and 16 2010, Bank of America asked if she was interested in a loan modification through the 17 federal Home Affordable Modification Program but that Defendant never followed 18 through with its offer. 19 Plaintiff brings fifteen claims: (1) Defendants’ lack of standing and statutorily 20 defective foreclosure; (2) fraud in the concealment; (3) fraud in the inducement; (4) 21 violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”); (5) 22 violations of the Fair Debt Collection Practices Act (“FDCPA”); (6) unconscionable 23 contract against Defendant MidFirst; (7) breach of contract against Defendant MidFirst; 24 (8) breach of fiduciary duty against Defendant MidFirst; (9) violations of the Nevada 25 Deceptive Trade Practices Act (“NDTPA”) against Defendant Bank of America; (10) 26 /// 27 28 3The Court refers to Fannie Mae, Fannie Mae as Trustee for Securitized Trust, and Fannie Mae Remic Pass-Through Certificates 2006-123 as “Fannie Mae.” 2 1 falsification; (11) civil conspiracy; (12) quiet title; (13) slander of title; (14) temporary 2 restraining order and injunctive relief; and (15) declaratory relief. (ECF No. 1 at 39-72.) 3 III. MOTIONS TO DISMISS 4 A. Legal Standard 5 Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim 6 upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded 7 complaint must provide “a short and plain statement of the claim showing that the 8 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 9 U.S. 544, 555 (2007). The Rule 8 notice pleading standard requires Plaintiff to “give the 10 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id. 11 (internal quotation marks and citation omitted). While Rule 8 does not require detailed 12 factual allegations, it demands more than “labels and conclusions” or a “formulaic 13 recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009) (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to rise 15 above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to 16 dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that 17 is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). 18 In Iqbal, the Supreme Court clarified the two-step approach district courts are to 19 apply when considering motions to dismiss. First, a district court must accept as true all 20 well-pleaded factual allegations in the complaint; however, legal conclusions are not 21 entitled to the assumption of truth. Id. at 678. Mere recitals of the elements of a cause of 22 action, supported only by conclusory statements, do not suffice. Id. Second, a district 23 court must consider whether the factual allegations in the complaint allege a plausible 24 claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint 25 alleges facts that allow a court to draw a reasonable inference that the defendant is 26 liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the 27 court to infer more than the mere possibility of misconduct, the complaint has “alleged 28 ― but it has not show[n] ― that the pleader is entitled to relief.” Id. at 679 (internal 3 1 quotation marks omitted). When the claims in a complaint have not crossed the line 2 from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 3 570. A complaint must contain either direct or inferential allegations concerning “all the 4 material elements necessary to sustain recovery under some viable legal theory.” Id. at 5 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989)). 6 A motion to dismiss “grounded in fraud under Rule 9(b) for failure to plead with 7 particularity is the functional equivalent of a motion to dismiss under Rule 12(b)(6) for 8 failure to state a claim.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 9 2003) (internal quotation marks omitted). “Because a dismissal of a complaint or claim 10 grounded in fraud for failure to comply with Rule 9(b) has the same consequence as a 11 dismissal under Rule 12(b)(6), dismissals under the two rules are treated in the same 12 manner.” Id. 13 The Supreme Court has held that documents filed pro se must be liberally 14 construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976). “[A] pro se complaint, however 15 inartfully pleaded, must be held to less stringent standards than formal pleadings 16 drafted by lawyers.” Id. Thus, a pro se complaint can only be dismissed for failure to 17 state a claim if “it appears beyond doubt that the plaintiff can prove no set of facts in 18 support of his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 520-21 19 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)) (internal quotation marks 20 omitted). 21 B. 22 Both BANA Defendants and MERS Defendants move to dismiss the complaint 23 on the basis that it violates Rules 8 and 9, and fails to state a claim upon which relief 24 may be granted. (ECF No. 45 at 5-7; ECF No. 62 at 1-2.) BANA Defendants also argue 25 that the claims in the complaint arise from events that transpired 8 to 10 years ago, 26 making Plaintiff’s claims time-barred. MidFirst joined in this argument as well as the 27 prior contention raised by both sets of Defendants. (ECF No. 54 at 1-3.) The Court finds 28 that the primary legal theories advanced by Plaintiff are not cognizable, and on that Discussion 4 1 reason as well as the others outlined below finds that the complaint fails to state claims 2 upon which relief may be granted. i. 3 Lack of Standing to Foreclose/Statutorily Defective Foreclosure4 4 Plaintiff brings her first claim against all Defendants, alleging that Defendants do 5 not have standing to foreclose upon the Property as “each of them[] have failed to 6 perfect any security interest in the [ ] Property.” (ECF No. 1 at ¶ 146.) Plaintiff also 7 alleges that MERS cannot be a real party in interest in a securitized mortgage. (ECF 8 No. 1 at 42.) The Court construes this as an attempt by Plaintiff to advance a theory of 9 improper securitization or assignment in order to attack particular Defendants’ standing 10 to foreclose upon the Property and to make an attempt to argue that MERS is a “sham 11 beneficiary” (see ECF No. 1 at ¶ 160 (referring to MERS as a “nominee beneficiary” who 12 lacks authority to foreclose upon a DOT or to transfer an interest in the Note)). 13 Neither theories have any merit. To begin, “[t]he securitization argument has 14 been repeatedly rejected by this district because it does not alter or change the legal 15 beneficiary’s standing to enforce the deed of trust.” Beebe v. Fed. Nat. Mortg. Ass’n, 16 No. 2:13-cv-311-JCM-GWF, 2013 WL 3109787, at *2 (D. Nev. June 18, 2013). 17 Moreover, a homeowner lacks standing to challenge the validity of a loan assignment. 18 Wood v. Germann, 331 P.3d 859, 861 (Nev. 2014). Finally, the Ninth Circuit has 19 resoundingly rejected the argument “that all transfers of the interests in the home loans 20 within the MERS system are invalid because the designation of MERS as a beneficiary 21 is a sham and the system splits the deed from the note,5 and, thus, no party is in a 22 23 24 25 26 27 28 4The tort of wrongful foreclosure may be brought only where a foreclosure actually occurs, see Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983), and the complaint does not allege that a foreclosure has, in fact, transpired. 5Nevada law permits deeds of trust and promissory notes to be severed from one another and independently transferred without impairing the ultimate right to foreclose. Edelstein v. Bank of New York Mellon, 286 P.3d 249, 258-60 (Nev. 2012). Rather, in order to foreclose upon a deed of trust, the party seeking foreclosure must demonstrate at the time of foreclosure that it is both “the current beneficiary of the deed of trust and the current holder of the promissory note,” id. at 255, or that it is the named beneficiary of the deed of trust acting as agent for the note holder, see In re Montierth v. Deutsche Bank, 354 P.3d 648, 651 (Nev. 2015). Moreover, the venue to challenge a failure of the foreclosing entity to join the note and deed of trust at the time of foreclosure or to (fn. cont…) 5 1 position to foreclose.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 2 1044 (9th Cir. 2011). “Even if MERS were a sham beneficiary, the lenders would still be 3 entitled to repayment of the loans and would be the proper parties to initiate foreclosure 4 after the plaintiff[ ] defaulted on [her] loan[].” Id. Moreover, as in Cervantes, here, MERS 5 did not initiate the foreclosure process nor does it appear to be asserting a claim to the 6 Property. Plaintiff’s first claim is therefore dismissed with prejudice as to all Defendants. 7 ii. 8 Fraud in the Concealment & Fraud in the Inducement 9 Both Plaintiff’s second and third claims are for fraud in the concealment and 10 fraud in the inducement. Her second claim is alleged against only MidFirst and appears 11 to pertain to MidFirst’s purported concealment of their status as a non-Federal Reserve 12 Depository Bank and the securitization of the DOT. (ECF No. 1 at ¶ 167.) By contrast, 13 her third claim is against all Defendants and alleges that Defendants misrepresented 14 that they are the holder of the note and beneficiary of the deed of trust or, in other 15 words, that they do not have authority to foreclose on the Property. (See id. at ¶ 178.) 16 The Court finds that both claims fail to meet the heightened pleading requirements of 17 Fed. R. Civ. P. 9(b) and that they also fail to state a plausible claim for relief. 18 In order to meet the heightened pleading requirements of Rule 9(b), allegations 19 of fraud must be specific enough to put a defendant on notice of the particular 20 misconduct she is alleged to have committed so that she may properly defend herself. 21 Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001). “Averments of fraud must 22 be accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” 23 Vess, 317 F.3d at 1106 (quoting Cooper v. Pickett, 137 F.3d 616, 6237 (9th Cir. 1997)). 24 /// 25 /// 26 27 28 (…fn. cont.) demonstrate it is in an agency relationship with the holder of the note is generally through Nevada’s foreclosure mediation program. See, e.g., Bergenfield v. Bank of America, 302 P.3d 1141 (Nev. 2013). 6 1 Under Nevada law, fraud in the inducement6 occurs when a party intentionally 2 and knowingly makes a false representation to a plaintiff who in turn justifiably relies 3 upon that false statement to her detriment. J.A. Jones Constr. Co. v. Lehrer McGovern 4 Bovis, Inc., 89 P.3d 1009, 1017 (Nev. 2004). 5 On her second claim, because Plaintiff has failed to allege when and where 6 MidFirst made these misrepresentations or how such misrepresentations amount to 7 fraud, Plaintiff has failed to meet the requirements of Rule 9(b). Moreover, Plaintiff does 8 not allege that MidFirst made any false statements to her or that it had an affirmative 9 duty to disclose the two purported misrepresentations. Finally, this claim is time barred.7 10 See NRS § 11.190(3)(d) (stating that an action for fraud generally must be brought 11 within 3 years of discovery of the facts constituting the fraud). Accordingly, the Court 12 dismisses this claim with prejudice as amendment would be futile. 13 As to Plaintiff’s third claim, the Court has already stated that Plaintiff does not 14 have standing to challenge any of Defendants’ standing to foreclose based upon 15 contentions that they do not have proper assignment of the promissory note or DOT. 16 The Court thus dismisses the third claim with prejudice as to all Defendants. iii. 17 Racketeer Influenced and Corrupt Organizations Act 18 In Plaintiff’s fourth claim brought under the Racketeer Influenced and Corrupt 19 Organizations Act (“RICO”), she contends that Defendants worked with particular 20 individuals to unlawfully execute or cause to be recorded fraudulent assignments in 21 order to obtain illegal title to her home through an illegitimate foreclosure. (ECF No. 1 at 22 /// 23 24 25 26 27 28 6Plaintiff’s fraud in the concealment claim appears to ultimately be a claim for fraud in the inducement. Moreover, the Nevada Supreme Court has never recognized an independent claim for relief for fraud in the concealment. See Olson v. Iacometti, 533 P.2d 1360, 1364 (Nev. 1975) (stating that fraud in the concealment is a legal theory). 7In Plaintiff’s response to BANA Defendants’ Motion, she mentions that Fannie Mae’s violation of the Truth in Lending Act tolled the statute of limitations for her claim (although it is unclear which claims she is referring to). (ECF No. 58 at 6.) However, the complaint does not include a claim under the Truth in Lending Act, making her argument irrelevant. 7 1 ¶¶ 192, 198.) Because Plaintiff does not have standing to challenge improper 2 assignment of the promissory note or DOT, this claim is dismissed with prejudice. iv. 3 Fair Debt Collection Practices Act 4 In Plaintiff’s fifth claim brought under the Fair Debt Collection Practices Act 5 (“FDCPA”), she contends that “Defendants’ actions of filing and maintaining an 6 illegitimate foreclosure action upon her with the use of false statements and evidence 7 constitute a false, deceptive, and/or misleading practice in an attempt to collect a debt.” 8 (ECF No. 1 at ¶ 227.) This claim appears to stem from Plaintiff’s allegations that none of 9 Defendants have standing to foreclose upon her home because of improper assignment 10 of the DOT, making any statements regarding Defendants’ authority to foreclose false. 11 Because Plaintiff does not have standing to challenge the improper assignment of the 12 promissory note or DOT, this claim is dismissed with prejudice. v. 13 Unconscionable Contract 14 The Court has difficulty parsing Plaintiff’s sixth claim for relief, which appears to 15 be a claim of “unconscionable contract” against MidFirst. (See ECF No. 1 at 58.) The 16 Court finds that Plaintiff fails to state a claim for relief and that amendment would be 17 futile as this claim is time barred. 18 “A contract is unconscionable only when the clauses of the contract and the 19 circumstances existing at the time of the execution of it are so one-sided as to oppress 20 or unfairly surprise an innocent party.” Bill Stremmel Motors, Inc. v. IDS Leasing Corp., 21 514 P.2d 654, 657 (Nev. 1973). Under Nevada law, both procedural and substantive 22 unconscionability must be present in order for a court to exercise its discretion to refuse 23 to enforce a contract or contractual clause. See D.R. Horton, Inc. v. Green, 96 P.3d 24 1159, 1162 (Nev. 2004). While substantive unconscionability focuses on the one- 25 sidedness of the contract’s terms, procedural unconscionability involves the use of fine 26 print or complicated, incomplete, or misleading language that fails to inform a 27 reasonable person of the contractual language’s consequences. Id. at 1162-63. The 28 /// 8 1 time in which to bring a claim for unconscionability of contract is six years. NRS § 2 11.190(1)(b). 3 Plaintiff makes several statements regarding the actions of MidFirst. First, she 4 states that “MidFirst Bank presented in the origination of the purported loan that specific 5 criteria such as FICO score and other industry standard underwriting requirements must 6 be met to qualify for a loan of money for the subject from MidFirst Bank.” (ECF No. 1 at 7 ¶ 233.) Second, she states that MidFirst “presented in the origination of the purported 8 loan that a preliminary signature on the Mortgage loan contract was required to ‘lock in’ 9 an interest rate regarding the terms of the purported loan.” (Id. at ¶ 234.) Third, she 10 states that MidFirst “failed to clarify in the terms of the Mortgage loan contract that 11 MidFirst Bank, the Originator on the contract, was in fact acting solely in the capacity as 12 an Accommodated Party account debtor beneficiary for a purported loan of money” and 13 “concealed they were financially benefitting by bargaining with a third party to acquire a 14 service release premium via wire funds transfer to table fund the purported loan at the 15 closing using a warehouse line of credit.” (Id. at ¶ 235.)8 The Court is unable to decipher 16 the meaning of Plaintiff’s third statement, but from the first two statements the Court 17 gathers that Plaintiff is attempting to allege that the terms of her original contract with 18 MidFirst in 2006 did not adequately inform her of the contractual language’s 19 consequences. However, the complaint itself fails to make this clear, as Plaintiff fails to 20 point to specific provisions in her original contract with MidFirst nor does she state that 21 her subsequent interest rates surprised her or that MidFirst induced her to enter into a 22 mortgage she could not actually afford based upon her FICO score or a failure of 23 MidFirst to follow proper underwriting standards. Therefore, Plaintiff fails to allege 24 sufficient facts to establish a claim for unconscionable contract against Giampa. 25 /// 26 27 28 8Plaintiff also makes a statement relating to modification of her loan terms (see ECF No. 1 at ¶ 236), but MidFirst was not involved with any attempt to modify her loan, which occurred in 2011. 9 1 Moreover, Plaintiff’s home loan payments were accelerated beginning in 2009 2 and the loan entered into an initial state of foreclosure as far back as December 2010 3 (ECF No. 1 at ¶¶ 67-85), ostensibly putting her on inquiry notice of any 4 unconscionability of her original contract’s terms. Based on these facts, the claim is also 5 time-barred. 6 7 This claim is therefore dismissed with prejudice. vi. Breach of Contract 8 In Plaintiff’s seventh claim, she alleges that Defendants MidFirst and MERS 9 failed to properly “satisfy, release and reconvey the beneficiary security interest in 10 Plaintiff’s [DOT]” in violation of Paragraph 23 in the DOT. (ECF No. 1 at ¶¶ 240-242; see 11 also ECF No. 1-1 at 73 (Exh. 6).) However, a deed of trust is not a contract between a 12 borrower and lender; rather, it is a document conveying an interest in real property as 13 security for performance of an obligation under a contract. See RESTATEMENT (THIRD) 14 OF PROPERTY (MORTGAGES) § 1.1 (AM. LAW INST. 1997); see also § 1.2 cmt. a (“A 15 mortgage is a conveyance” and “is merely security” that does not require consideration). 16 vii. Breach of Fiduciary Duty 17 In Plaintiff’s eighth claim for breach of fiduciary duty, she contends that Midfirst 18 failed to “meet their fiduciary duty to satisfy, release and reconvey the Real Property 19 Lien Deed of Trust” and did not act in the “best interest of the grantor of the deed of 20 trust.” (ECF No. 1 at ¶¶ 246-248.) To the extent this claim purports to state that MidFirst 21 owed a fiduciary duty to Plaintiff to “satisfy, release and reconvey” the DOT, this claim 22 fails as a matter of law. In Nevada, a lender in an arm’s length loan transaction does not 23 have a fiduciary relationship with a borrower. See Eruchalu v. U.S. Bank, National Ass., 24 No. 2:12-cv-01264-MMD-VCF, 2013 WL 6667702 at *9 (D. Nev. Dec. 17, 2013). 25 26 Therefore, this claim is dismissed with prejudice. viii. Nevada Deceptive Trade Practice Act 27 In Plaintiff’s ninth claim for violation of §§ 598.0915 and 598.092 of the Nevada 28 Deceptive Trade Practices Act (“NDTPA”), she contends that Bank of America violates 10 1 NDPTA by using “deceptive practices[] and/or misrepresentations in connection with 2 Plaintiff’s mortgage modification.” (ECF No. 1 at ¶ 251.) Under NRS § 598.0915, a 3 deceptive trade practice includes knowingly making a false representation in a 4 transaction; and under NRS § 598.092(8), a deceptive trade practice includes knowingly 5 misrepresenting the legal rights, obligations, or remedies of a party to a transaction. 6 This claim fails as a matter of law, as courts in this district have recognized that 7 the NDPTA does not apply to real estate loan transactions but only to the sale of goods 8 and services. See Bonvicin v. Bank of America Corp., No. 2:14-cv-01279-GMN-VCF, 9 2016 WL 632211, at *4 (D. Nev. Feb. 17, 2016) (finding that the statute does not apply 10 to deception in mortgage loan modification claims); see also Reyna v. Wells Fargo 11 Bank, N.A., No. 2:10-cv-01730-KJD-RJJ, 2011 WL 2690087, at *9 (D. Nev. July 11, 12 2011) (“N.R.S. § 598 . . . applies only to goods and services and not to real estate loan 13 transactions.”). ix. 14 Falsification 15 In Plaintiff’s tenth claim for “falsification,” she contends that Defendants and other 16 individuals “knowingly made a false statement within the Assignments” and that the 17 statement “was made with the purpose to mislead the arbitrator in the performance of 18 their official function within the foreclosure action.” (ECF No. 1 at ¶¶ 255-256.) As 19 MERS Defendants note in their motion, this is “not a recognizable, independent cause 20 of action, but rather a restatement and re-characterization of [Plaintiff’s] fraud, 21 misrepresentation, RICO, and slander of title claims.”9 (ECF No. 62 at 18.) x. 22 Civil Conspiracy 23 In Plaintiff’s eleventh claim for civil conspiracy, she contends that Defendants 24 and other individuals conspired to execute the assignments knowing that they contained 25 false statements. (ECF No. 1 at ¶¶ 258-262.) However, as discussed previously Plaintiff 26 27 28 9The Court notes that in the section of the complaint for the civil conspiracy claim, Plaintiff claims that falsification is a crime and tort. (See ECF No. 1 at ¶¶ 261.) However, there is no crime or tort of “falsification” (although there is a crime and a tort for fraud). 11 1 does not have standing to challenge any improper or false assignment of the 2 promissory note or DOT. Therefore, this claim fails as a matter of law and is dismissed 3 with prejudice. xi. 4 Quiet Title and Slander of Title 5 Plaintiff’s twelfth and thirteenth claims for relief both allege that Defendants have 6 no legal right or perfected security interest in the Property because “any alleged transfer 7 or assignment of Defendants’ rights or interest in the subject Real Property must be 8 considered invalid and void” and that the recorded assignments contain false 9 statements derogatory to Plaintiff’s title in the property. (ECF No. 1 at ¶¶ 269, 285-288.) 10 Because both of these claims are predicated on Plaintiff’s theory that Defendants do not 11 have standing to foreclose upon the Property because of improper assignment, the 12 Court has already found that she does not have standing to make these claims. The Court therefore dismisses these claims with prejudice. 13 xii. 14 Remaining Claims 15 Plaintiff’s two remaining claims are for injunctive and declaratory relief. (ECF No. 16 1 at 70-72.) Because the claims upon which injunctive and declaratory relief are 17 predicated have been dismissed with prejudice, the Court also dismisses these claims 18 with prejudice. 19 IV. CONCLUSION 20 The Court notes that the parties made several arguments and cited to several 21 cases not discussed above. The Court has reviewed these arguments and cases and 22 determines that they do not warrant discussion as they do not affect the outcome of the 23 parties’ motions. 24 It is therefore ordered that BANA Defendants’ Motion to Dismiss (ECF No. 45) 25 and MERS Defendants’ Motion to Dismiss (ECF No. 62) are granted, and Plaintiff’s 26 complaint is dismissed with prejudice. 27 /// 28 /// 12 1 It is further ordered that Plaintiff’s Motion for Temporary Restraining Order (ECF 2 Nos. 11, 12) and Motion for Entry of Default against Defendant National Default 3 Servicing (ECF No. 49) are denied as moot. 4 Any remaining motions are also denied as moot. 5 The Clerk is directed to enter judgment in accordance with this Order and close 6 7 this case. DATED THIS 9th day of November 2017. 8 9 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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