Anthony Gazzigli v. Countrywide Home Loans, Inc. et al

Filing 12

ORDER granting in part and denying in part 4 Motion to Dismiss. All claims are dismissed except those for statutorily defective foreclosure and quiet title. Signed by Chief Judge Robert C. Jones on 7/9/12. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTHONY GAZZIGLI,

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This is a standard foreclosure case involving one property. The Complaint filed in state

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Plaintiff,
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vs.
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COUNTRYWIDE HOME LOANS, INC. et al.,
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Defendants.

3:12-cv-00051-RCJ-VPC
ORDER

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court lists six causes of action: (1) Violation of the Fair Debt Collection Practices Act

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(“FDCPA”) as incorporated under Nevada Revised Statutes (“NRS”) Section 649.370; (2) Unfair

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Trade Practices under NRS Chapters 41 and 598; (3) Violation of the Implied Covenant of Good

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Faith and Fair Dealing; (4) Statutorily Defective Foreclosure under NRS Section 107.080; (5)

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Quiet Title; and (6) Fraud. The case is not part of Case No. 2:09-md-02119-JAT in the District

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of Arizona but appears eligible for transfer. Defendants have moved to dismiss. For the reasons

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given herein, the Court grants the motion in part and denies it in part.

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I.

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THE PROPERTY
Plaintiff Anthony Gazzigli gave lender Countrywide Home Loans, Inc. (“Countrywide”)

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(Id.) a $124,600 promissory note secured by real property at 1624 & 1624 ½ G St., Sparks, NV

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89431 (the “Property”). (See Deed of Trust (“DOT”) 1–4, Dec. 9, 2004, ECF No. 4-1). The

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trustee was CTC Real Estate Services (“CTC”), and Mortgage Electronic Registration Systems,

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Inc. (“MERS”) was the lender’s “nominee.” (See id. 2). MERS assigned the beneficial interest

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to The Bank of New York Mellon (“Mellon”), as trustee for a mortgage-backed security.

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(See Assignment, Feb. 22, 2010, ECF No. 4-3). Mellon substituted Recontrust Co., N.A.

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(“Recontrust”) as trustee. (See Substitution, Feb. 22, 2010, ECF No. 4-4). First American Title

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Insurance Co. (“First American”) filed the notice of default (“NOD”) as agent for Recontrust

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based on a default of unspecified amount as of September 1, 2009. (See NOD, Feb. 22, 2010,

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ECF No. 4-5). Recontrust attempted to sell the Property at four trustee’s sales between August

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2010 and September 2011. (See Notices of Trustee’s Sale, ECF Nos. 4-7 to 4-11).

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II.

ANALYSIS
Although the timing of the foreclosure documents appears to have been proper, there is

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no evidence of First American’s agency on behalf of Recontrust apart from First American’s

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own claim of agency on the NOD itself. The Court will therefore await a summary judgment

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motion on the section 107.080 and quiet title claims. The other claims fail under the respective

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statutes of limitations and for other reasons given in substantively similar cases.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 4) is GRANTED in

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part and DENIED in part. All claims are dismissed except those for statutorily defective

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foreclosure and quiet title.

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IT IS SO ORDERED.

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DATED 29th day of of July, 2012.
Dated thisthis 9th day May, 2012.

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_____________________________________
ROBERT C. JONES
United States District Judge

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