Camacho-Villa et al v. Great Western Home Loans et al

Filing 43

ORDERED that D Indymac's # 27 Motion to dismiss is GRANTED. All of Ps' claims against Indymac that are under our jurisdiction are dismissed. This Order is not intended to refer to or rule upon any claim under the jurisdiction of the MDL c ourt. FURTHER ORD that D MERS's # 29 Motion to dismiss is DENIED without prejudice insofar as it is addressed to this Court. This Order is not intended to refer to or rule upon any claim under the jurisdiction of the MDL court. FURTHER ORD that P Jose Camacho- Villa's # 31 Second Motion to Remand is DENIED. FURTHER ORD that D MERS's # 37 Motion to Stay All Proceedings Pending Decision on Motion to Remand is DENIED as moot. Signed by Judge Edward C. Reed, Jr on 3/23/2011. (Copies have been distributed pursuant to the NEF - DRM)

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Camacho-Villa et al v. Great Western Home Loans et al Doc. 43 1 2 3 4 5 6 JOSE CAMACHO-VILLA and MICHELLE CAMACHO-VILLA, 7 Plaintiffs, 8 vs. 9 GREAT WESTERN HOME LOANS, a California 10 Corporation; FIRST AMERICAN TITLE COMPANY; MORTGAGE ELECTRONIC 11 REGISTRATION SYSTEM, INC., a subsidiary of MERSCORP, INC., a 12 Delaware corporation, [MERS], MTDS, INC., a California Corporation DBA 13 MERIDIAN TRUST DEED SERVICE; MERIDIAN FORECLOSURE SERVICE, a California 14 Corporation; INDYMAC MORTGAGE SERVICES, a division of ONEWEST BANK, FBS; and 15 DOES and ROES 1-25 Individuals, Partnerships, or anyone claiming any 16 interest to the property described in the action 17 ___________________________________ 18 Plaintiffs are homeowners who allege that they are the victims 19 of a predatory lending scheme perpetuated by Defendants. 20 assert causes of action for (i) injunctive relief; (ii) declaratory 21 relief; (iii) violations of the Federal Fair Debt Collection 22 Practice Act and the Nevada Fair Debt Collection law; (iv) unfair 23 and deceptive trade practices; (v) unfair lending practices; (vi) 24 violation of the covenant of good faith and fair dealing; (vii) 25 wrongful foreclosure; (viii) quiet title; (ix) fraud through 26 omission; (x) fraud in the inducement; (xi) conspiracy to commit 27 fraud and conversion; (xii) civil conspiracy; (xiii) racketeering; 28 Plaintiffs ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 3:10-CV-210-ECR-VPC UNITED STATES DISTRICT COURT DISTRICT OF NEVADA RENO, NEVADA Order Dockets.Justia.com 1 and (xiv) unjust enrichment. Now pending are a Motion to Dismiss 2 First Amended Complaint (#27) filed by Defendant Indymac Mortgage 3 Services ("Indymac"); a Motion to Dismiss First Amended Complaint 4 (#29) filed by Defendant Mortgage Electronic Registration System, 5 Inc. ("MERS"); a Second Motion to Remand (#31) filed by Plaintiff 6 Jose Camacho-Villa; and a Motion to Stay All Proceedings Pending 7 Decision on Motion to Remand (#37) filed by Defendant MERS. 8 motions are ripe, and we now rule on them. 9 10 11 I. Factual Background Plaintiffs allege that on or about December 14, 2006, The 12 Plaintiffs Jose Camacho-Villa and Michelle Camacho-Villa executed a 13 note in the amount of $214,400 in favor of lender Great Western Home 14 Loans (the "Mortgage Note") and a deed of trust (the "Deed of 15 Trust") with respect to real property located at 7322 Warhol Drive, 16 Sun Valley, Nevada 89433 (the "Property"). (Am. Compl. 3 (#26).) 17 Plaintiffs contend that they made several attempts to modify their 18 loan (the "Loan") through Indymac, believed to be the Loan servicer, 19 but were not able to contact the holder of the note directly. (Id. 20 at 34.) A notice of default with respect to the Loan was recorded 21 on September 23, 2009 by Defendant Meridian Trust Deed Service. Id. 22 On December 28, 2009, MTDS, Inc. recorded a Notice of Trustee's sale 23 with respect to the Property. 24 25 26 II. Procedural Background On March 8, 2010, Plaintiffs Jose Camacho-Villa and Michelle 27 Camacho-Villa filed a "Complaint Quiet Title and Other Equitable 28 2 1 Remedies" (#1 Ex. 1) in the Second Judicial District Court of the 2 State of Nevada in and for the County of Washoe. On April 13, 2010, 3 Defendants MERS and Indymac filed a Petition for Removal (#1) to the 4 United States District Court for the District of Nevada. Also on 5 April 13, 2010, Plaintiff Jose Camacho-Villa filed a Motion to 6 Remand to State Court (#2). Defendant Indymac filed a Response (#7) 7 to Motion to Remand to State Court (#2) and a Motion to Dismiss (#8) 8 on April 30, 2010. 9 on May 3, 2010. 10 Pursuant to a June 3, 2010 Conditional Transfer Order (#20), Defendant MERS filed a Motion to Dismiss (#12) 11 the claims in this case related to the formation and/or operation of 12 MERS were transferred by the United States District Panel on 13 Multidistrict Litigation to the District of Arizona. The claims 14 unrelated to the formation and/or operation of MERS were 15 simultaneously remanded to this Court. 16 On July 12, 2010, the Court granted Plaintiffs leave to amend 17 their complaint and denied Plaintiffs' Motion to Remand (#2), 18 Defendant Indymac's Motion to Dismiss (#8) and Defendant MERS's 19 Motion to Dismiss (#12) as moot. 20 21 2010. Plaintiffs filed their amended complaint (#26) on July 19, Defendant Indymac filed a Motion to Dismiss First Amended Defendant MERS filed a Motion to Plaintiff 22 Complaint (#27) on August 3, 2010. 23 Dismiss First Amended Complaint (#29) on August 5, 2010. 24 Jose Camacho-Villa filed a Second Motion to Remand (#31) on August 25 23, 2010. Defendant MERS filed a Motion to Stay All Proceedings 26 Pending Decision on Motion to Remand (#37) on September 13, 2010. 27 28 3 1 2 3 III. Motion to Dismiss Standard Federal Rule of Civil Procedure 12(b)(6) mandates that a court 4 dismiss a cause of action that fails to state a claim upon which 5 relief can be granted. Courts engage in a two-step analysis in 6 ruling on a motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937 7 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). First, 8 courts accept only non-conclusory allegations as true. Iqbal, 129 S. 9 Ct. at 1949. "Threadbare recitals of the elements of a cause of 10 action, supported by mere conclusory statements, do not suffice." 11 Id. (citing Twombly, 550 U.S. at 555). Federal Rule of Civil 12 Procedure 8 "demands more than an unadorned, the-defendant13 unlawfully-harmed-me accusation." Id. Federal Rule of Civil 14 Procedure 8 "does not unlock the doors of discovery for a plaintiff 15 armed with nothing more than conclusions." Id. at 1950. The Court 16 must draw all reasonable inferences in favor of the plaintiff. See 17 Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949 (9th Cir. 18 2009). 19 After accepting as true all non-conclusory allegations and 20 drawing all reasonable inferences in favor of the plaintiff, the 21 Court must then determine whether the complaint "states a plausible 22 claim for relief." Iqbal, 129 S. Ct. at 1949. (citing Twombly, 550 23 U.S. at 555). "A claim has facial plausibility when the plaintiff 24 pleads factual content that allows the court to draw the reasonable 25 inference that the defendant is liable for the misconduct alleged." 26 Id. at 1949 (citing Twombly, 550 U.S. at 556). This plausibility 27 standard "is not akin to a `probability requirement,' but it asks 28 4 1 for more than a sheer possibility that a defendant has acted 2 unlawfully." Id. A complaint that "pleads facts that are `merely 3 consistent with' a defendant's liability...'stops short of the line 4 between possibility and plausibility of `entitlement to relief.'" 5 Id. (citing Twombly, 550 U.S. at 557). 6 7 8 9 IV. Plaintiffs' Motion to Remand (#31) and Defendant MERS's Motion to Stay Proceedings (#37) Pursuant to a June 3, 2010 Conditional Transfer Order (#20), 10 the claims in this case related to the formation and/or operation of 11 MERS were transferred by the United States District Panel on 12 Multidistrict Litigation to the District of Arizona. The claims 13 unrelated to the formation and/or operation of MERS were 14 simultaneously remanded to this Court. Thus, we do not have 15 jurisdiction over the entirety of this lawsuit, and cannot, at this 16 time, remand it. 17 be denied. Therefore, Plaintiffs' Motion to Remand (#31) will Plaintiffs may renew their motion to remand or file 18 another motion to remand after the District of Arizona has completed 19 pretrial proceedings and transferred any remaining MERS-related 20 claims back to this court. As Plaintiffs' Motion to Remand (#31) 21 will be denied, Defendant MERS's Motion to Stay Proceedings Pending 22 Decision on Motion to Remand will therefore be denied as moot. 23 24 25 26 V. Defendant Indymac's Motion to Dismiss First Amended Complaint (#27) Defendant Indymac filed a Motion to Dismiss (#27) Plaintiffs' 27 First Amended Complaint (#22) pursuant to Federal Rule of Civil 28 5 1 Procedure 12(b)(6) on August 3, 2010. Defendant Indymac alleges (i) 2 that Plaintiffs' first cause of action, for injunctive relief, must 3 be dismissed because it fails to state facts sufficient to 4 constitute a cause of action against Indymac; (ii) that Plaintiffs' 5 second cause of action, for declaratory relief, must be dismissed 6 because it fails to state facts sufficient to constitute a cause of 7 action against Indymac; (iii) that Plaintiffs' third cause of 8 action, a claim for abusive debt collection practices, must be 9 dismissed because Indymac is not a debt collector; (iv) that 10 Plaintiffs' fourth cause of action, alleging unfair and deceptive 11 trade practices, must be dismissed because Indymac is not a debt 12 collector; (v) that Plaintiffs' fifth cause of action, for violation 13 of unfair lending practices, must be dismissed because Indymac is 14 not a lender; (vi) that Plaintiffs' sixth cause of action, alleging 15 breach of the implied covenant of good faith and fair dealing, must 16 be dismissed because Indymac is not a party to the Loan contract; 17 (vii) that Plaintiffs' seventh cause of action for wrongful 18 disclosure must be dismissed because Indymac did not record any 19 documents on title with respect to the Property; (viii) that 20 Plaintiffs' eighth cause of action for quiet title must be dismissed 21 because Indymac did not cause a cloud on title to the Property; (ix) 22 that Plaintiffs' ninth and tenth causes of action for fraud through 23 omission and fraud in the inducement must be dismissed because they 24 fail to state facts sufficient to sustain a cause of action against 25 Indymac; and (x) that Plaintiffs' fourteenth cause of action unjust 26 enrichment must be dismissed because it fails to state facts 27 sufficient to constitute a cause of action against Indymac. 28 6 1 A. Plaintiffs' First Cause of Action Must be Dismissed 2 Because It Fails to State Facts Sufficient to Constitute a Cause of 3 Action for Injunctive Relief as to Defendant Indymac. 4 Plaintiffs' first cause of action seeks injunctive relief to 5 enjoin Defendants from proceeding with a foreclosure sale with 6 respect to the Property. (Am. Compl. 48 (#26).) This cause of 7 action is based upon Plaintiffs' claim that the Notice of Default 8 and Election to Sell Under Deed of Trust and the Notice of Trustee's 9 Sale were improperly recorded on title to the subject property. 10 Defendant Indymac contends that it had no involvement in the 11 foreclosure of the Property, and so this cause of action must be 12 dismissed. 13 Plaintiffs contend generally that "the continued deception 14 exists by all the present Defendants, participating in the 15 transaction, assuming either the servicing rights or accepting the 16 note," but Plaintiffs do not allege any specific wrongdoing on the 17 part of Indymac with respect to the recording of the Notice of 18 Default and Election to Sell Under Deed of Trust and the Notice of 19 Trustee's Sale. (Id. 45.) We therefore find that Plaintiffs' 20 first cause of action is too vague to survive a motion to dismiss. 21 Claims that fail to identify which defendant is responsible for what 22 alleged injury do not adequately place defendants on notice of the 23 claim or claims being asserted against them. 24 Supp. 2d at 1022. 25 B. Plaintiffs' Second Cause of Action Must be Dismissed See Fortaleza, 642 F. 26 Because It Fails to State Facts Sufficient to Constitute a Cause of 27 Action for Declaratory Relief as to Defendant Indymac. 28 7 1 Plaintiffs' second cause of action for declaratory relief seeks 2 a judicial declaration that the recording of the Notice of Default 3 and Election to Sell Under Deed of Trust and the Notice of Trustee's 4 Sale was unlawful and created a cloud on title to the Property. (Am. 5 Compl. 55 (#26).) 6 As stated above, Plaintiffs do not allege any specific 7 wrongdoing on the part of Indymac with respect to the recording of 8 the Notice of Default and Election to Sell Under Deed of Trust and 9 the Notice of Trustee's Sale. (Id. 45.) We therefore find that 10 Plaintiffs' second cause of action is too vague to survive a motion 11 to dismiss. Claims that fail to identify which defendant is 12 responsible for what alleged injury do not adequately place 13 defendants on notice of the claim or claims being asserted against 14 them. 15 See Fortaleza, 642 F. Supp. 2d at 1022. C. Plaintiffs' Third Cause of Action for Abusive Debt 16 Collection Practices Must be Dismissed Because Defendant Indymac is 17 Not a Debt Collector for Purposes of the FDCPA. 18 Defendant Indymac argues that Plaintiffs' third cause of 19 action, alleging a claim for abusive debt collection practices, must 20 be dismissed because Indymac is not a debt collector. Plaintiffs 21 allege that the Notice of Default with respect to the Loan violates 22 The Federal Debt Collection Practices Act ("FDCPA") 15 U.S.C. 23 1692. (Am. Compl. 60-66 (#26).) The FDCPA regulates "debt 24 collectors," and defines "debt collector" as "any person who uses 25 any instrumentality of interstate commerce or the mails in any 26 business the principal purpose of which is the collection of any 27 debts, or who regularly collects or attempts to collect, directly or 28 8 1 indirectly, debts owed or due or asserted to be owed or due 2 another." 15 U.S.C. 1692a(6). The statute's definition of "debt 3 collector" does not include a person who collects a debt "to the 4 extent such activity...(ii) concerns debt which was originated by 5 such person; [or] (iii) concerns a debt which is not in default at 6 the time it is obtained by such person." 7 15 U.S.C. 1692a(6)(F). Foreclosure pursuant to a deed of trust does not constitute Hulse v. Ocwen Fed. Bank, FSB, 195 8 debt collection under the FDCPA. 9 F. Supp. 2d 1188, 1204 (D. Or. 2002); Izenberg v. ETS Servs., LLC, 10 589 F. Supp. 2d 1193 (C.D. Cal. 2008). See also Heinemann v. Jim 11 Walter Homes, Inc.,47 F. Supp. 2d 716, 722 (N.D.W. Va. 1998). 12 Further, the FDCPA's definition of "debt collector" does not 13 "include the consumer's creditors, a mortgage servicing company, or 14 any assignee of the debt, so long as the debt was not in default at 15 the time it was assigned." Croce v. Trinity Mortg. Assur. Corp., 16 2009 U.S. Dist. LEXIS 89808 (D. Nev. Sept. 28, 2009). See also S. 17 Rep. No. 95-382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S. 18 Code Cong. & Ad. News 1695, 1698. 19 As a mortgage servicing company, therefore, Indymac will not be Further, Plaintiffs 20 considered a "debt collector" under the FDCPA. 21 do not allege any facts to show that Indymac engaged in any conduct 22 that would violate fair debt collection statutes. Plaintiffs allege 23 that Indymac violated the FDCPA and Nevada debt collection statutes 24 by recording a Notice of Default and Election to Sell that did not 25 contain language mandated by 15 U.S.C. 1692e(11) and 15 U.S.C. 26 1692g(a)(1)-(5). (Am. Compl. 61-62 (#26).) Plaintiffs' Amended 27 Complaint (#26), however, alleges that Defendant MTDS, Inc., as 28 9 1 opposed to Indymac, filed the Notice of Default and Election to 2 Sell, and does not allege any further facts indicating that Indymac 3 violated federal or state fair debt collection statutes. Id. 5, 4 28. 5 We therefore find that as a mortgage servicing company, Indymac We further 6 does not fit the FDCPA's definition of "debt collector." 7 find that Plaintiffs have failed to allege facts sufficient to 8 sustain a claim that Indymac violated the FDCPA and Nevada debt 9 collection statutes. Therefore, Plaintiffs' third cause of action 10 must be dismissed as to Defendant Indymac. 11 D. Plaintiffs' Fourth Cause of Action, Alleging Unfair and 12 Deceptive Trade Practices, Must be Dismissed Because Defendant 13 Indymac is Not a Debt Collector for Purposes of the FDCPA. 14 Defendant Indymac contends that Plaintiffs' fourth cause of 15 action must be dismissed because Indymac is not a debt collector for 16 purposes of the FDCPA. Plaintiffs contend that Defendants violated 17 the Nevada Unfair and Deceptive Trade Practices Act because they did 18 not have the required foreign collector's license when they sent the 19 Notice of Default and Election to Sell in violation of Nev. Rev. 20 Stat. 649.370 and the FDCPA. 21 As stated above, the FDCPA regulates "debt collectors." Nev. 22 Rev. Stat. 649.370 codifies the FDCPA as part of Nevada state law, 23 providing that "a violation of any provision of the federal Fair 24 Debt Collection Practices Act...or any regulation pursuant thereto, 25 shall be deemed a violation of this chapter." As such, Nev. Rev. 26 Stat. 649.370 regulates "debt collectors" as defined by the FDCPA. 27 We found above that Indymac is not a debt collector for purposes of 28 10 1 the FDCPA. It therefore follows that Indymac is not a debt 2 collector for purposes of Nev. Rev. Stat. 649.370. 3 Because Indymac is not a debt collector for purposes of FDCPA 4 and Nev. Rev. Stat. 649.370, we find that Plaintiffs' fourth cause 5 of action for violation of the Nevada Unfair and Deceptive Trade 6 Practices Act must be dismissed as to Defendant Indymac. 7 E. Plaintiffs' Fifth Cause of Action for Unfair Lending 8 Practices Must be Dismissed Because Defendant Indymac is Not a 9 Lender with respect to the Loan. 10 Defendant Indymac argues that Plaintiffs' fifth cause of action 11 for unfair lending practices under Nev. Rev. Stat. 598D, must be 12 dismissed because Indymac is not a lender with respect to the Loan. 13 (Am. Compl. 78 (#26).) Nev. Rev. Stat. 598D.050 defines 14 "Lender" as a "mortgagee, beneficiary of a deed of trust or other 15 creditor who holds a mortgage, deed of trust or other instrument 16 that encumbers home property as security for the repayment of a home 17 loan." 18 Here, the parties do not dispute that Indymac was not the Plaintiffs' Amended 19 original lender with respect to the Loan. 20 Complaint (#26) explicitly states that Great Western Home Loans was 21 the lender with respect to the Loan. Id. 3. Further, the Deed of 22 Trust identifies Great Western Homes as the lender with respect to 23 the Loan. The Ninth Circuit Court of Appeals has held that 24 "documents whose contents are alleged in a complaint and whose 25 authenticity no party questions, but which are not physically 26 attached to the pleading, may be considered in ruling on a Rule 27 12(b)(6) motion to dismiss" without converting the motion to dismiss 28 11 1 into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 2 454 (9th Cir. 1994). 3 Plaintiffs claim that as a loan servicer, Indymac "steps into 4 the shoes of the originator" and so is subject to Plaintiffs' claims 5 because the servicer has the right to collect on the debt. (P.'s 6 Resp. at 3 (#32)). Specifically, Plaintiffs claim that either the 7 original lender, Great Western Home Loans, established a 8 relationship with Indymac as loan servicer, or, in the alternative, 9 that the Note was endorsed by the payee-mortgagee and physically 10 delivered to Indymac as the new holder. Id. Plaintiffs do not 11 provide, nor have we discovered, any authority for this position. 12 On the contrary, we have held that a loan servicer that is not 13 involved in the origination of a loan will not be subject to an 14 unfair lending practices claim under Nev. Rev. Stat. 598D. 15 Contreras v. Master Fin., Inc., 2010 U.S. Dist. LEXIS 118017 (D. 16 Nev. Nov. 4, 2010); Hasan v. Ocwen Loan Servicing, LLC, 2010 U.S. 17 Dist. LEXIS 69634 (D. Nev. July 12, 2010); Freeto v. Litton Loan 18 Servicing LP, 2010 U.S. Dist. LEXIS 78869 (D. Nev. July 7, 2010). 19 We therefore find that Indymac was not a lender with respect to 20 the Loan, and so no cause of action may be asserted against Indymac 21 under Nev. Rev. Stat. 598D. Therefore, on the foregoing basis, 22 Plaintiffs' fifth cause of action must be dismissed as to Defendant 23 Indymac. 24 F. Plaintiffs' Sixth Cause of Action for Violation of the 25 Covenant of Good Faith and Fair Dealing Must be Dismissed Because 26 Defendant Indymac was Not a Party to the Loan Contract. 27 28 12 1 In their sixth cause of action, Plaintiffs assert a violation Specifically, 2 of the covenant of good faith and fair dealing. 3 Plaintiffs allege that Defendant Great Western Home Loans, as 4 lender, breached the covenant of good faith and fair dealing when it 5 "offered the Plaintiffs consideration for a loan modification, told 6 them that the foreclosure would be postponed and then invited them 7 to have their denial reconsidered" after the property was foreclosed 8 upon. 9 (Am. Compl. 83 (#26)). Under Nevada law, "[e]very contract imposes upon each party a 10 duty of good faith and fair dealing in its performance and 11 execution." A.C. Shaw Constr. v. Washoe County, 105 Nev. 913, 914 12 (Nev. 1989)(quoting Restatement (Second) of Contracts 205). This 13 duty requires each party not to do anything to destroy or otherwise 14 injure the rights of the other to receive the benefits of the 15 contract. Hilton Hotels Corp. v. Butch Lewis Productions, Inc., 107 To prevail on a cause of action for breach of 16 Nev. 226, 234 (1991). 17 the implied covenant of good faith and fair dealing, a plaintiff 18 must show: (i) the existence of a valid, enforceable contract; (ii) 19 the defendant's performance in a manner that is unfaithful to the 20 purpose of the contract and the justified expectations of the 21 plaintiff; and (iii) resulting damages sustained by the plaintiff. 22 Perry v. Jordan, 111 Nev. 943, 948 (1995). It therefore follows 23 that the implied covenant of good faith and fair dealing only 24 extends to parties to the contract. Contreras v. Master Fin., Inc., 25 2011 U.S. Dist. LEXIS 996 at *7-8 (D. Nev. Jan. 4, 2011); Bhadra v. 26 State Farm Fire & Cas. Co., 2010 U.S. Dist. LEXIS 64618 at *10 (D. 27 28 13 1 Nev. June 1, 2010); Vargas v. California State Auto. Ass'n Inter2 Insurance Bureau, 788 F. Supp. 462, 465 (D. Nev. Mar. 12, 1992). 3 Plaintiffs contend that as a mortgage servicing company, 4 Indymac "steps into the shoes of the originator" and so "is subject 5 to all [of Plaintiffs'] claims." (Response at 3 (#32).) However, we 6 have not discovered, nor have Plaintiffs provided, any authority to 7 indicate that Indymac could be held liable for breach of the implied 8 covenant of good faith and fair dealing where Indymac was not a 9 party to the Loan contract. 10 We therefore find that Plaintiffs' sixth cause of action, 11 alleging breach of the implied duty of good faith and fair dealing, 12 must be dismissed as to Defendant Indymac. 13 G. Plaintiffs' Seventh Cause of Action for Wrongful 14 Disclosure Must be Dismissed Because Defendant Indymac Did Not 15 Record any Documents on Title with Respect to the Property. 16 In their seventh cause of action, Plaintiffs assert that 17 Defendants wrongfully initiated foreclosure on the Property. 18 Plaintiffs allege that Defendant MTDS, Inc., as agent for the 19 original or substituted trustee, caused a Notice of Default and 20 Election to Sell Under Deed of Trust to be recorded on September 23, 21 2009. On December 28, 2009, Defendant Documents Processing 22 Solutions caused a Notice of Trustee's Sale to be recorded. (Am. 23 Compl. 90 (#26).) Indymac contends that it should be dismissed 24 from Plaintiffs' wrongful foreclosure action because Indymac was not 25 involved with the recording of the Notice of Default or the Election 26 to Sell Under Deed of Trust or the Notice of Trustee's Sale with 27 respect to the Property. 28 14 1 An action for wrongful foreclosure requires that, at the time 2 of the foreclosure sale, the plaintiff was not in breach of the 3 mortgage contract. Ellifritz v. Netbank, 2010 U.S. Dist. LEXIS 4 139065 (D. Nev. Dec. 28, 2010); Haley v. Elegen Home Lending, LP, 5 2010 U.S. Dist. LEXIS 24590 (D. Nev. Mar. 15, 2010); Collins v. 6 Union Federal Sav. & Loan Ass'n, 662 P.2d 610, 623 (D. Nev. 1983). 7 Here, Plaintiffs admit that they were in default on their mortgage 8 obligation. (Am. Compl. 50 (#26).) As such, there can be no 9 sustainable action for wrongful foreclosure. 10 Furthermore, a claim for wrongful foreclosure does not arise 11 until the power of sale is exercised. Haley, 2010 U.S. Dist. LEXIS 12 24590 at *4; Collins, 662 P.2d at 623. Plaintiffs filed both their 13 original (#1) and amended (#26) complaints before the Property was 14 sold. As such, Plaintiffs' claim for wrongful foreclosure is 15 premature and not actionable. 16 H. Plaintiffs' Eighth Cause of Action for Quiet Title 17 Must be Dismissed Because Defendant Indymac Did Not Cause a Cloud on 18 Title to the Property by Recording the Deed of Trust, Notice of 19 Default, Election to Sell Under Deed of Trust or Notice of Trustee's 20 Sale with Respect to the Property. 21 Plaintiffs' eighth cause of action is for quiet title. Under 22 Nevada law, a quiet title action may be brought by a party who 23 claims an adverse interest in the subject property. NEV. REV. STAT. 24 40.010. A quiet title claim requires a plaintiff to allege that the 25 defendant is unlawfully asserting an adverse claim to title to real 26 property. Union Mill v. Mining Co. v. Warren, 82 F. 519, 520 27 (C.C.D. Nev. 1897); Clay v. Cheeline Banking & Trust Co., 159 P. 28 15 1 1081, 1082 (Nev. 1916). Plaintiffs allege that Defendants caused a 2 cloud on title to the Property by recording a Deed of Trust, Notice 3 of Default, Election to Sell Under Deed of Trust and/or Notice of 4 Trustee's Sale (Am. Compl. 102, 106 (#26).) 5 Plaintiffs acknowledge that the Deed of Trust on the Property 6 was recorded by the lender, Defendant Great Western Home Loans (Id. 7 3.) The Notice of Default, Election to Sell Under Deed of Trust 8 and Notice of Trustee's Sale indicate on their faces that they were 9 recorded by Defendant MTDS, Inc. (Request for Judicial Notice, Ex. 2 10 and 3.) Plaintiffs do not allege any facts that would indicate that 11 Defendant Indymac was involved in the filing of these documents, 12 which caused a cloud on title to the Property. We therefore find 13 that Plaintiffs provide no viable legal or factual justification for 14 their quiet title claim as to Defendant Indymac, and so it will be 15 dismissed. 16 I. Plaintiffs' Ninth and Tenth Causes of Action for Fraud 17 Through Omission and Fraud in the Inducement Must be Dismissed 18 Because it Fails to State Facts Sufficient to Constitute a Cause of 19 Action for Injunctive Relief as to Defendant Indymac. 20 Under Nevada law, a claim for fraud in the inducement requires 21 a party to prove each of the following elements: (1) a false 22 representation; (2) knowledge or belief that the representation was 23 false (or knowledge that the defendant had an insufficient basis for 24 making the representation); (3) intent to induce the plaintiff to 25 consent to the contract's formation; (4) justifiable reliance upon 26 the misrepresentation; and (5) damage resulting from such reliance. 27 J.A. Jones Const. Co. v. Lehrer McGovern Bovis, Inc., 89 P.3d 1009, 28 16 1 1017 (Nev. 2004). A claim for fraudulent concealment requires that 2 the "defendant must have been under a duty to disclose the fact to 3 the plaintiff." Nev. Power Co. v. Monsanto Co., 891 F. Supp. 1406, 4 1415 (D. Nev. 1995). 5 "In alleging fraud or mistake, a party must state with 6 particularity the circumstances constituting fraud or mistake." FED. 7 R. CIV. P. 9(b). In order to meet the heightened pleading 8 requirements, a plaintiff must specify the time, place and content 9 of the misrepresentation as well as the names of the parties 10 involved. See Yourish v. Cal. Amplifier, 191 F.3d 983, 993 n. 10 11 (9th Cir. 1999). In a case with multiple defendants, "Rule 9(b) 12 does not allow a complaint to merely lump multiple defendants 13 together but requires plaintiffs to differentiate their allegations 14 when suing more than one defendant and inform each defendant 15 separately of the allegations surrounding his alleged participation 16 in the fraud." Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 17 2007) (internal quotation marks and citation omitted). 18 Plaintiffs' claims fail to satisfy the heightened pleading Plaintiffs' allegations in support of these Indeed, Plaintiffs do not provide 19 standard of Rule 9(b). 20 claims are vague and conclusory. 21 information related to the content and context of the alleged 22 misrepresentation. Plaintiffs' ninth and tenth claims for relief 23 thus fail to satisfy the requirements of Rule 9(b) and will be 24 dismissed. 25 J. Plaintiffs' Fourteenth Cause of Action for Unjust 26 Enrichment Must be Dismissed Because There was a Written Contract 27 Regarding the Mortgage on the Property. 28 17 1 Plaintiffs allege, generally, that Defendants have been 2 unjustly enriched by virtue of their "unethical, unsound lending 3 practices." (Am. Compl. 117 (#26).) To set forth a claim for 4 unjust enrichment, a plaintiff must allege that a defendant unjustly 5 retained money or property of another against fundamental principles 6 of equity. Contreras v. Master Fin., Inc., 2011 U.S. Dist LEXIS 996 7 at *10 (Jan. 4. 2011). See also Asphalt Prods. Corp. v. All Star 8 Ready Mix, 898 P.2d 699, 700 (Nev. 1995). However, an action for 9 unjust enrichment cannot stand when there is an express written 10 contract which guides the activities of the parties. LeasePartners 11 Corp. v. Robert L. Brooks Trust Dated Nov. 12, 1975, 942 P.2d 182, 12 187 (Nev. 1997). 13 Here, Plaintiffs entered into a written contract with respect 14 to the mortgage on the Property, namely, the Deed of Trust and the 15 Mortgage Note. These documents guided the interactions, obligations As such, Plaintiffs cannot make a claim 16 and rights of the parties. 17 for unjust enrichment with respect to actions that are controlled by 18 a contract to which Plaintiffs are parties. Contreras v. Master 19 Fin., Inc., 2011 U.S. Dist. LEXIS 996 at *10. See also LeasePartners 20 Corp., 942 P.2d at 187-88. 21 will therefore be dismissed. 22 23 VI. Defendant MERS's Motion to Dismiss First Amended Complaint (#29) 24 Defendant MERS filed a Motion to Dismiss (#29) Plaintiffs' Plaintiffs' claim for unjust enrichment 25 First Amended Complaint (#22) pursuant to Federal Rule of Civil 26 Procedure 12(b)(6) on August 5, 2010. 27 28 18 1 As stated above, pursuant to a June 3, 2010 Conditional 2 Transfer Order (#20), the claims in this case related to the 3 formation and/or operation of MERS were transferred by the United 4 States District Panel on Multidistrict Litigation to the District of 5 Arizona (the "MDL court"). The claims unrelated to the formation 6 and/or operation of MERS were simultaneously remanded to this Court. 7 Defendant MERS's motion to dismiss (#29) states claims that may be 8 within the jurisdiction of the MDL court. As such, MERS's Motion to 9 Dismiss (#29) will be denied without prejudice insofar as it is 10 addressed to this Court. 11 12 13 VII. Leave to Amend Under Federal Rule of Civil Procedure 15(a), leave to amend is In general, Owens v. 14 to be "freely given when justice so requires." 15 amendment should be allowed with "extreme liberality." 16 Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) 17 (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 18 1079 (9th Cir. 1990)). If factors such as undue delay, bad faith, 19 dilatory motive, undue prejudice or futility of amendment are 20 present, leave to amend may properly be denied in the district 21 court's discretion. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 22 1048, 1051-52 (9th Cir. 2003). 23 Here, we previously granted Plaintiffs leave to amend their 24 original complaint (#1 Ex. 1) in our minute order (#25) of July 12, 25 2010. We find that Plaintiffs should not be granted another There is no reason why 26 opportunity to amend their complaint. 27 Plaintiffs could not have cured the deficiencies we have noted here, 28 19 1 in their first amended complaint (#26). As such, we are be forced 2 to conclude that leave to further amend would be futile. 3 4 5 VIII. Conclusion Plaintiffs have failed to state a claim upon which relief could 6 be granted with respect to their claims against Defendant Indymac. 7 Plaintiffs will not be given leave to amend. Defendant MERS's 8 Motion to Dismiss (#29) appears to relate to claims under the 9 jurisdiction of the MDL court and will be dismissed without 10 prejudice insofar as it is addressed to this Court. Defendant Jose Defendant 11 Camacho-Villa's Second Motion (#31) to Remand is denied. 12 MERS's Motion (#37) to Stay all proceedings is therefore rendered 13 moot, and will be denied on that basis. 14 15 IT IS, THEREFORE, HEREBY ORDERED that Defendant Indymac's All of Plaintiffs' claims This 16 motion to dismiss (#27) is GRANTED. 17 against Indymac that are under our jurisdiction are dismissed. 18 Order is not intended to refer to or rule upon any claim under the 19 jurisdiction of the MDL court. 20 IT IS HEREBY FURTHER ORDERED that Defendant MERS's motion to 21 dismiss (#29) is DENIED without prejudice insofar as it is addressed 22 to this Court. This Order is not intended to refer to or rule upon 23 any claim under the jurisdiction of the MDL court. 24 IT IS HEREBY FURTHER ORDERED that Plaintiff Jose Camacho- 25 Villa's Second Motion to Remand (#31) is DENIED. 26 27 28 20 1 IT IS HEREBY FURTHER ORDERED that Defendant MERS's Motion to 2 Stay All Proceedings Pending Decision on Motion to Remand (#37) is 3 DENIED as moot. 4 5 DATED: March 23rd 2011. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 ____________________________ UNITED STATES DISTRICT JUDGE

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