Nelson et al v. Bank of America, N.A.

Filing 19

ORDER granting 6 Motion to Dismiss. Clerk shall enter judgment and close the case. Signed by Chief Judge Robert C. Jones on 4/26/13. (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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SHIRLEY NELSON et al.,

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This is a declaratory judgment action concerning a residential mortgage. Pending before

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Plaintiffs,
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vs.
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BANK OF AMERICA, N.A.,
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Defendant.

3:13-cv-00036-RCJ-WGC
ORDER

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the Court is a Motion to Dismiss (ECF No. 6). For the reasons given herein, the Court grants the

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motion.

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I.

FACTS AND PROCEDURAL HISTORY

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In February, 2003, Plaintiffs Shirley and Ralph Nelson gave Defendant Bank of America,

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N.A. (“BOA”) a promissory note as a home equity line of credit. (Compl. ¶ 6, Jan. 2, 2013, ECF

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No. 1-3).1 Because of the real estate crash, there is no equity in the subject property, making the

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second mortgage “unsecured.” (See id. ¶ 7). Plaintiffs sued Defendant in state court for

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declaratory judgment and quiet title to the effect that the second mortgage is either totally

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unsecured or only 10% secured, and that Plaintiffs may remove the second mortgage as an

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The exhibit adduced, however, appears to be a first mortgage for $206,050.

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encumbrance against the property. Defendant removed and has moved to dismiss for failure to

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state a claim.

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II.

LEGAL STANDARDS

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

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(1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

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that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

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12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720

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F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for

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failure to state a claim, dismissal is appropriate only when the complaint does not give the

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defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is

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sufficient to state a claim, the court will take all material allegations as true and construe them in

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the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th

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Cir. 1986). The court, however, is not required to accept as true allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

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State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

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with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation

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is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly,

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550 U.S. at 555).

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“Generally, a district court may not consider any material beyond the pleadings in ruling

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on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

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complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

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& Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

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whose contents are alleged in a complaint and whose authenticity no party questions, but which

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are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

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motion to dismiss” without converting the motion to dismiss into a motion for summary

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judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule

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of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay

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Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court

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considers materials outside of the pleadings, the motion to dismiss is converted into a motion for

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summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.

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2001).

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III.

ANALYSIS
The Court grants the motion. There is no state or federal cause of action to strip a

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security interest from a debt because of a loss of equity in the collateral. Counsel cites no legal

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authority supporting the present claims.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 6) is GRANTED.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS SO ORDERED.

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Dated this 15th day of of April, 2013.
Dated this 26th day April, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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