Masoner v. Mortgage Electronic Registration Systems, Inc. et al

Filing 32

ORDERED that D's # 4 Motion to dismiss is GRANTED. D Mann Mortgage, LLC is DISMISSED as a defendant in this action. FURTHER ORDERED that D's # 5 Motion to dismiss is GRANTED. Defendant Mortgage Electronic Registration Systems, Inc. is DISMISSED as a defendant in this action. Signed by Judge Larry R. Hicks on 5/31/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Before the court are defendant Mann Mortgage, LLC’s (“Mann”) motion to dismiss

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KARA MASONER,

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Plaintiff,

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v.

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MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC; et al.,

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Defendants.

3:11-cv-0233-LRH-VPC
ORDER

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(Doc. #41) and defendant Mortgage Electronic Registration Systems, Inc.’s (“MERS”) motion to

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dismiss (Doc. #5). Plaintiff Kara Masoner (“Masoner”) filed an opposition to both motions

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(Doc. #11) to which defendants replied (Doc. ##15, 16).

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I.

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Facts and Procedural History
In January, 2006, Masoner purchased real property through a mortgage note and deed of

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trust originated by Mann. Eventually, Masoner defaulted on the mortgage note and defendants

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initiated non-judicial foreclosure proceedings.

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Subsequently, Masoner filed a complaint against defendants alleging four causes of action:
(1) injunctive relief; (2) declaratory relief; (3) quiet title; and (4) tortious breach of the covenants of

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Refers to the court’s docket number.

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good faith and fair dealing. Doc. #1, Exhibit A. Thereafter, moving defendants filed the present

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motions to dismiss. Doc. ##4, 5.

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II.

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Legal Standard
Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

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to state a claim upon which relief can be granted. To survive a motion to dismiss for failure to state

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a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading

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standard. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That

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is, a complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require

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detailed factual allegations; however, a pleading that offers “‘labels and conclusions’ or ‘a

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formulaic recitation of the elements of a cause of action’” will not suffice. Ashcroft v. Iqbal, 129 S.

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Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 1949 (quoting

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Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows

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the court to draw the reasonable inference, based on the court’s judicial experience and common

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sense, that the defendant is liable for the misconduct alleged. See id. at 1949-50. “The plausibility

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standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a

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defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a

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defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to

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relief.” Id. at 1949 (internal quotation marks and citation omitted).

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In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as

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true. Id. However, “bare assertions . . . amount[ing] to nothing more than a formulaic recitation of

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the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret

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Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1951) (brackets in original)

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(internal quotation marks omitted). The court discounts these allegations because “they do nothing

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more than state a legal conclusion—even if that conclusion is cast in the form of a factual

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allegation.” Id. (citing Iqbal, 129 S. Ct. at 1951.) “In sum, for a complaint to survive a motion to

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dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be

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plausibly suggestive of a claim entitling the plaintiff to relief.” Id.

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III.

Discussion

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A. Quiet Title

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Under Nevada law, a quiet title action may be brought by someone who claims an adverse

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interest in property. NRS § 40.010. Here, the underlying property has already been foreclosed upon
and sold at a trustee’s sale. Thus, Masoner no longer has any interest in the property.
Further, because the property has already been sold, no defendant is claiming an interest to

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the property that is adverse to Masoner. Therefore, Masoner has no grounds to quiet title against

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defendants.

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B. Tortious Breach of Good Faith and Fair Dealing

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Masoner alleges that defendants breached their fiduciary duties in their dealings with her

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and by allowing the property to be foreclosed upon. See Doc. #1, Exhibit A.
Generally, a lender does not owe a borrower a fiduciary duty. See Yerington Ford, Inc. v.

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General Motors Acceptance Corp., 359 F.Supp.2d 1075, 1092 (D. Nev. 2004). Absent a duty, there

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can be no breach. See A.C. Shaw Constr. v. Washoe County, 784 P.2d 9, 10 (Nev. 1989). Here,

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Masoner has failed to allege that there was a special relationship between her and the defendants

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other than a standard arms-length loan transaction. Further, Masoner does not identify any action

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taken by defendants that would constitute a violation of the covenants of good faith and fair dealing

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absent a fiduciary relationship. Because Masoner has failed to allege sufficient facts to establish

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that there was a fiduciary relationship between her and the defendants, the court finds that Masoner

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fails to state a claim for tortious breach of the covenants of good faith and fair dealing.

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C. Injunctive and Declaratory Relief

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Claims for injunctive or declaratory relief are remedies that may be afforded to a party after

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she has sufficiently established and proven her claims; they are not separate causes of action. See

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e.g., In re Wal-Mart & Hour Employment Practices Litig., 490 F. Supp. 1091, 1130 (D. Nev. 2007)

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(holding that a claim for injunctive relief was not a separate cause of action or independent ground

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for relief); State Farm Mut. Auto. Ins. Co. v. Jafbros Inc., 860 P.2d 176, 178 (Nev. 1993) (“It is

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axiomatic that a court cannot provide a remedy unless it has found a wrong. [T]he existence of a

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right violated is a prerequisite to the granting of an injunction.”). Here, Masoner fails to establish

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any claim for relief. Accordingly, she is not entitled to injunctive or declaratory relief.

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IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. #4) is
GRANTED. Defendant Mann Mortgage, LLC is DISMISSED as a defendant in this action.

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IT IS FURTHER ORDERED that defendant’s motion to dismiss (Doc. #5) is GRANTED.

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Defendant Mortgage Electronic Registration Systems, Inc. is DISMISSED as a defendant in this

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action.

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IT IS SO ORDERED.

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DATED this 31st day of May, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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