Barajas v. U.S. Bank National Association et al

Filing 31

ORDER. IT IS HEREBY ORDERED that defendants' 5 , 14 and 16 motions to dismiss are GRANTED. Plaintiff's complaint (Doc. 1 , Exhibit A) is DISMISSED in its entirety. FURTHER ORDERED, defendants' 8 motion to confirm expiration of the temporary restraining order is GRANTED. Signed by Judge Larry R. Hicks on 3/28/2012. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FRANCISCO BARAJAS,

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Plaintiff,

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v.

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WELLS FARGO BANK, N.A.; et al.,

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Defendants.

3:11-cv-0894-LRH-VPC
ORDER

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Before the court are defendants Wells Fargo Bank, N.A. (“Wells Fargo”); Mortgage

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Electronic Registration Systems, Inc. (“MERS”); and America’s Servicing Company, Inc.’s

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(“America’s Servicing”) motion to dismiss (Doc. #51) and motion to confirm expiration of the

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underlying temporary restraining order (Doc. #8). Plaintiff Francisco Barajas (“Barajas”) filed an

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opposition (Doc. #11) to which moving defendants replied (Doc. #12).

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Also before the court are defendant National Default Servicing Corporation’s (“NDSC”)

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motion to dismiss (Doc. #14); and defendant T.D. Service Company’s (“T.D”) motion to dismiss

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(Doc. #16).

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I.

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Facts and Procedural History
In August, 2005, Barajas purchased real property through a mortgage note and deed of trust

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Refers to the court’s docket number.

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originated by defendant BNC Mortgage, Inc. (“BNC”). Eventually, Barajas defaulted on the

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mortgage note and defendants initiated non-judicial foreclosure proceedings.

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Subsequently, Barajas filed a complaint in state court against defendants alleging three

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causes of action: (1) wrongful foreclosure; (2) declaratory relief; and (3) injunctive relief. Doc. #1,

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Exhibit A. Defendants removed the action to federal court based upon diversity jurisdiction.

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Doc. #1. Thereafter, moving defendants filed the present motions to dismiss. Doc. ##5, 14, 16.

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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

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 Barajas was in default on his mortgage

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

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Further, Barajas’s claim that defendants violated the recent amendments to Nevada’s

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recording statute, AB284, which requires all assignments of the deed of trust to be recorded, is

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without merit. The amendment only applies to assignments and foreclosures occurring on or after

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October 1, 2011. Here, it is undisputed that the underlying foreclosure, along with the filing of the

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notice of default and all assignments, commenced in 2008. See Doc. #1, Exhibit A. Thus, AB284

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does not apply to the underlying foreclosure and cannot constitute a claim for relief in this action.

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Accordingly, the court shall grant moving defendants’ motions to dismiss.

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B. Declaratory and Injunctive Relief

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

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after he has sufficiently established and proven his claims; they are not separate causes of action.
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See e.g., In re Wal-Mart & Hour Employment Practices Litig., 490 F. Supp. 1091, 1130 (D. Nev.

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2007). Here, Barajas fails to allege any claims against defendants that warrant relief. Thus, he is not

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entitled to declaratory or injunctive relief. Accordingly, the court shall grant moving defendants’

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motions to dismiss.

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IT IS THEREFORE ORDERED that defendants’ motions to dismiss (Doc. ##5, 14, 16) are
GRANTED. Plaintiff’s complaint (Doc. #1, Exhibit A) is DISMISSED in its entirety.
IT IS FURTHER ORDERED that defendants’ motion to confirm expiration of the
temporary restraining order (Doc. #8) is GRANTED.

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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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