Barcena v. JPMorgan Chase Bank, N.A. et al

Filing 16

ORDERED that D's # 2 Motion to dismiss is GRANTED. P's complaint (Doc. # 1 , Exhibit A) is DISMISSED without prejudice. Signed by Judge Larry R. Hicks on 3/28/2012. (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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ALEJANDRA BARCENA,

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Plaintiff,

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v.

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JP MORGAN CHASE BANK, N.A.; et al.,

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Defendants.

3:11-cv-0880-LRH-VPC
ORDER

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Before the court is defendants JP Morgan Chase Bank, N.A. (“JP Morgan”) and California

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Reconveyance Company’s (“CRC”) motion to dismiss (Doc. #21) to which defendant LSI Title

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Agency, Inc. (“LSI”) joined (Doc. #6). Plaintiff Alejandra Barcena (“Barcena”) filed an opposition

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(Doc. #9) to which moving defendants replied (Doc. #10).

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I.

Facts and Procedural History

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In April, 2004, Barcena purchased real property through a mortgage note and deed of trust

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originated by non-party Washington Mutual Bank, FA (“WaMu”). Eventually, Barcena defaulted

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on the mortgage note and defendants initiated non-judicial foreclosure proceedings.

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Subsequently, Barcena filed a complaint against defendants alleging three causes of action:
(1) unlawful or fraudulent foreclosure; (2) declaratory relief; and (3) injunctive relief. Doc. #1,

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Refers to the court’s docket entry number.

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Exhibit A. Thereafter, moving defendants filed the present motion to dismiss. Doc. #2.

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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. Wrongful Foreclosure

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An action for wrongful foreclosure requires that, at the time of the foreclosure sale, the

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plaintiff was not in breach of the mortgage contract. Collins v. Union Federal Sav. & Loan Ass’n,

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662 P.2d 610, 623 (Nev. 1983). Here, it is undisputed that Barcena was in default on her mortgage

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obligations so there can be no sustainable action for wrongful foreclosure.

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Further, Barcena’s claim is premature because the tort of wrongful foreclosure is ripe once a

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power of sale has actually occurred and the foreclosure has been completed. See Haley v. Elgen

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Home Lending, LP, 2010 WL 1006664, *1-2 (D. Nev. 2010). Therefore, the court finds that

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Barcena fails to state a claim for wrongful foreclosure upon which relied can be granted.

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B. Declaratory and Injunctive Relief

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Barcena’s remaining causes of action for injunctive and declaratory relief are remedies that

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may be afforded to a party after she has sufficiently established and proven her claims; they are not

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separate causes of action. See e.g., In re Wal-Mart & Hour Employment Practices Litig., 490 F.

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Supp. 1091, 1130 (D. Nev. 2007) (holding that a claim for injunctive relief was not a separate cause

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of action or independent ground for relief). Here, Barcena’s claims fail to establish a claim for

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relief. Accordingly, she is not entitled to her requested remedies.

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IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. #2) is
GRANTED. Plaintiff’s complaint (Doc. #1, Exhibit A) is DISMISSED without prejudice.

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IT IS SO ORDERED.

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DATED this 28th day of March, 2012.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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