Duncan v. Cal-Western Reconveyance Corporation et al

Filing 30

ORDERED that D's # 24 Motion to dismiss is GRANTED. P's # 3 Complaint is DISMISSED in its entirety. FURTHER ORD D Bank of New York Mellon shall by 11/17/2012 prepare an appropriate order expunging lis pendens and submit the same for signature. Signed by Judge Larry R. Hicks on 11/6/2012. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***
)
)
)
)
)
)
)
)
)
)
)
)

9

LINDA DUNCAN

10

Plaintiff,

11

v.

12

CAL-WESTERN RECONVEYANCE
CORPORATION, et al.,

13
Defendants.
14

3:12-cv-0094-LRH-VPC
ORDER

15

Before the court is defendant the Bank of New York Mellon’s (“Mellon”) motion to dismiss.

16

Doc. #24.1 Plaintiff Linda Duncan (“Duncan”) filed an opposition (Doc. #26) to which Mellon replied

17

(Doc. #28).

18

I.

19

Facts and Background
In January 2004, Duncan purchased real property through a mortgage note and deed of trust

20

executed by non-party National City Mortgage Company (“National City”). In February 2005, National

21

City assigned the deed of trust to Mellon under the pooling and servicing agreement series 04-32. Doc.

22

#18, Exhibit B. The assignment of the deed of trust was subsequently recorded in Lyon County, Nevada.

23
24

Duncan eventually defaulted on the property and defendants initiated non-judicial foreclosure
proceedings. The property was eventually sold at a trustee’s sale on April 9, 2010. Doc. #18, Exhibit G.

25
26

1

Refers to the court’s docket number.

1

Subsequently, Duncan filed a complaint against defendants alleging three causes of action: (1)

2

breach of the implied covenants of good faith and fair dealing; (2) violation of NRS 107.080; and (3)

3

quiet title. Doc. #3. Thereafter, Mellon filed the present motion to dismiss. Doc. #24.

4

II.

5

Legal Standard
Defendant Mellon seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

6

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

7

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

8

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

9

must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

10

R. Civ. P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed factual allegations;

11

however, a pleading that offers “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

12

cause of action’” will not suffice. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic

13

Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

14

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

15

true, to ‘state a claim to relief that is plausible on its face.’” Id. at 1949 (quoting Twombly, 550 U.S. at

16

570). A claim has facial plausibility when the pleaded factual content allows the court to draw the

17

reasonable inference, based on the court’s judicial experience and common sense, that the defendant is

18

liable for the misconduct alleged. See id. at 1949-50. “The plausibility standard is not akin to a probability

19

requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a

20

complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line

21

between possibility and plausibility of entitlement to relief.” Id. at 1949 (internal quotation marks and

22

citation omitted).

23

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

24

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

25

. . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969

26

2

1

(9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1951) (brackets in original) (internal quotation marks

2

omitted). The court discounts these allegations because “they do nothing more than state a legal

3

conclusion—even if that conclusion is cast in the form of a factual allegation.” Id. (citing Iqbal, 129 S. Ct.

4

at 1951.) “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’

5

and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to

6

relief.” Id.

7

III.

Discussion

8

A. Breach of Good Faith and Fair Dealing

9

Under Nevada law, “[e]very contract imposes upon each party a duty of good faith

10

and fair dealing in its performance and execution.” A.C. Shaw Constr. v. Washoe County, 784

11

P.2d 9, 9 (Nev. 1989) (quoting Restatement (Second) of Contracts § 205). To establish a claim for

12

breach of the implied covenant of good faith and fair dealing, a plaintiff must show that: (1) the plaintiff and

13

defendant were parties to a contract; (2) the defendant owed a duty of good faith and fair dealing to the

14

plaintiff; (3) the defendant breached his duty by performing in a manner unfaithful to the purpose of the

15

contract; and (4) the plaintiff’s justified expectations were denied. See Perry v. Jordan, 134 P.3d 698,

16

702 (Nev. 2006) (citing Hilton Hotels Corp. v. Butch Lewis Prod. Inc., 808 P.2d 919, 922-23 (Nev.

17

1991).

18

Here, there is no contract between Duncan and Mellon. The only contract at issue is the mortgage

19

note originated by non-party National City. Therefore, the court finds that Duncan fails to allege a

20

sustainable claim for breach of the covenants of good faith and fair dealing.

21

B. NRS 107.080

22

In her complaint, Duncan alleges that defendants improperly foreclosed on her property because

23

the promissory note was severed from the deed of trust and none of the defendants hold the original

24

mortgage note. See Doc. #1, Exhibit A.

25

///

26

3

1

Nevada law does not require the production of the original note before one of the statutorily

2

enumerated parties initiates a non-judicial foreclosure. Weingarter v. Chase Home Finance, LLC, 702

3

F. Supp. 2d 1276, 1280 (D. Nev. 2010). Further, there is no private right of action for tort damages

4

under section 107.080. See Chavez v. Cal Recon. Co., 2010 WL 2545006, *2, (D. Nev. 2010). The

5

only available remedy under section 107.080 is for the court to void a trustee’s sale that was undertaken

6

in violation of the statute. As Duncan has failed to allege how defendants violated the statute, there is no

7

basis to void the trustee’s sale. Therefore, the court finds that Duncan fails to allege a claim upon which

8

relief can be granted.

9

C. Quiet Title

10

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

11

interest in property. NRS § 40.010. Here, Mellon, as trustee for the purchaser of the property at the

12

trustee’s sale, does not claim any interest in the property adverse to Duncan’s interest in the property.

13

Therefore, Duncan has no grounds to quiet title. Accordingly, the court shall grant Mellon’s motion to

14

dismiss.2

15

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

16

Plaintiff’s complaint (Doc. #3) is DISMISSED in its entirety.

17

///

18

///

19

///

20

///

21

///

22

///

23
24
25
26

2

The court, in granting defendant’s motion to dismiss, notes that Duncan did not request leave to amend
her complaint. However, even if she did request leave to amend, the court w ould deny the request because she
h as failed to make any showing that amendment in this particular case w ould not be futile or th at s h e c o u ld
overcome the identified pleading defects.

4

1

IT IS FURTHER ORDERED that defendant the Bank of New York Mellon shall have ten (10)

2

days from entry of this order to prepare an appropriate order expunging lis pendens and submit the same

3

for signature.

4

IT IS SO ORDERED.

5

DATED this 6th day of November, 2012.

6
__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

5