Caro et al v. OneWest Bank, FSB et al

Filing 56

ORDERED that D's # 24 Motion to dismiss is GRANTED. D Fidelity National Title Agency of Nevada, Inc. is DISMISSED as a defendant in this action. FURTHER ORD Ds' # 27 Joinder is DENIED. Signed by Judge Larry R. Hicks on 4/16/2012. (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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MARCELO and MARTHA CARO,

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Plaintiffs,

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v.

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ONEWEST BANK, FSB; et al.,

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Defendants.

3:11-cv-0699-LRH-VPC
ORDER

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Before the court is defendant Fidelity National Title Agency of Nevada, Inc.’s (“Fidelity”)

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motion to dismiss (Doc. #241) to which defendants OneWest Bank, FSB (“OneWest”); Mortgage

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Electronic Registration Systems Inc. (“MERS”); and Deutsche Bank National Trust Company

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(“Deutsche”) joined (Doc. #27). Plaintiffs Marcelo and Martha Caro (“the Caros”) filed an

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opposition (Doc. #30) to which Fidelity replied (Doc. #37).

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I.

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Facts and Procedural History
In March, 2007, the Caros purchased real property through a mortgage note and deed of

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trust originated by defendant OneWest. Eventually, the Caros defaulted on the mortgage note and

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defendants initiated non-judicial foreclosure proceedings. Subsequently, the Caros filed a complaint

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against defendants alleging three causes of action: (1) unlawful or fraudulent foreclosure;

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Refers to the court’s docket number.

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(2) declaratory relief; and (3) injunctive relief. Doc. #2. Thereafter, Fidelity filed the present motion

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to dismiss. Doc. #24.

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II.

Legal Standard

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Fidelity seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to

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

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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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The Caro’s complaint is based on activities stemming from the ongoing non-judicial

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foreclosure of their property. See Doc. #2. However, defendant Fidelity, the original trustee on the

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Deed of Trust, was substituted out as the trustee on September 23, 2009, prior to the initiation of

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non-judicial foreclosure proceedings and the recordation of the underlying Notice of Default.

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Doc. #24, Exhibit C. Further, the Caro’s complaint fails to allege that Fidelity took any part in the

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underlying foreclosure of their property. Therefore, the court finds that the Caros fail to state a

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claim against defendant Fidelity upon which relief can be granted.

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As to the additional defendants’ joinder, the court notes that these defendants were part of
the underlying foreclosure and shall deny their joinder accordingly.

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IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. #24) is

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GRANTED. Defendant Fidelity National Title Agency of Nevada, Inc. is DISMISSED as a

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defendant in this action.

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IT IS FURTHER ORDERED that defendants’ joinder (Doc. #27) is DENIED.

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IT IS SO ORDERED.

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DATED this 16th day of April, 2012.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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