Wensley v. First Nat'l Bank of Nev.

• Decision Date: 31 May 2012
• Docket Number: No. 3:11–cv–00809–ECR–WGC.,3:11–cv–00809–ECR–WGC.
• Citation: 874 F.Supp.2d 957
• Parties: Colleen M. WENSLEY, Plaintiff, v. FIRST NATIONAL BANK OF NEVADA; Stewart Title Company; National Default Servicing Corporation; America's Servicing Company; Chicago Default Services; Stanley S. Silva; and Does 1–25 Corporations, Does and Roes 1–25 Individuals, Partnerships, or anyone claiming any interest to the property described in the action, Defendants.
• Court: U.S. District Court — District of Nevada

874 F.Supp.2d 957

Colleen M. WENSLEY, Plaintiff,

v.FIRST NATIONAL BANK OF NEVADA; Stewart Title Company; National Default Servicing Corporation; America's Servicing Company; Chicago Default Services; Stanley S. Silva; and Does 1–25 Corporations, Does and Roes 1–25 Individuals, Partnerships, or anyone claiming any interest to the property described in the action, Defendants.

No. 3:11–cv–00809–ECR–WGC.

United States District Court, D. Nevada.

May 31, 2012.

Rick Lawton, Law Office Rick Lawton P.C., Fernley, NV, for Plaintiff.

Ariel E. Stern, Christine M. Parvan, Akerman Senterfitt, Las Vegas, NV, Christina H. Wang, Fidelity National Law Group, Henderson, NV, for Defendants.

Order

EDWARD C. REED, District Judge.

Plaintiff is a homeowner alleging to be the victim of a predatory lending scheme perpetrated by Defendants. Now pending is Defendant Stanley S. Silva's (“Silva”) Motion to Dismiss (# 3), Plaintiff's Motion to Add Indispensable Party (# 10), and Defendants America Servicing Company's (“ASC”) Motion to Dismiss (# 11). The motions are ripe and we now rule on them.

I. Background

On July 27, 2005, Plaintiff Wensley borrowed $495,000.00 from Defendant First National Bank of Nevada (“First National”) and secured the loan with a deed of trust (“Foreclosing Deed of Trust”) on the property located at 1181 Harbor Cove Court, Sparks, Nevada 89434, APN 037–341–21 (Compl. ¶¶ 2–4 ( 1–2, 1–3); Foreclosing Deed of Trust, Ex. A (# 11–1).) ¹ The Foreclosing Deed of Trust lists Defendant First National as the lender and Defendant Stewart Title Company (“Stewart Title”) as the trustee. (Foreclosing Deed of Trust, Ex. A at 1–2 (# 11–1).) The Foreclosing Deed of Trust allows the lender to foreclose on the property if Plaintiff does not make her loan payments. ( Id. ¶ 22.) The Foreclosing Deed of Trust also allows the lender to appoint a substitute trustee. ( Id. ¶ 24.) Finally, the Foreclosing Deed of Trust also provides that Mortgage Electronic Systems, Inc. (“MERS”), as nominee for the lender, has the right to exercise any or all interests including the right to foreclose and sell the property, and to take any action required of the lender. ( Id. at 4.)

Plaintiff defaulted on the deed of trust, and Defendant National Default Servicing Corporation (“NDSC”), as agent for the beneficiary, recorded a Notice of Default and Election to Sell on September 3, 2008. (Notice of Default, Ex. C (# 11–3).) On November 10, 2008, MERS transferred the beneficial interest in the deed of trust and the underlying note to HSBC Bank USA, National Association, as Trustee for the holders of Deutsche Alt–A Securities Mortgage Loan Trust Series 2005–5 by its Attorney in fact Wells Fargo Bank, N.A., successor by merger to Wells Fargo Home Mortgage Inc. (“HSBC”). (Assignment, Ex. B (# 11–2).) Later on November 10, 2008, HSBC substituted NDSC as trustee under the Foreclosing Deed of Trust. (Substitution of Trustee, Ex. D (# 11–4).)

On December 4, 2008, NDSC recorded a Notice of Trustee's Sale, noticing a December 31, 2008 sale date. (First Notice of Trustee's Sale, Ex. E (# 11–5).) The sale was postponed, and NDSC recorded a second Notice of Trustee's Sale on October 26, 2009, noticing a November 17, 2009 sale date. (Second Notice of Trustee's Sale, Ex. F (# 11–6).) The sale was against postponed, and NDSC recorded a third Notice of Trustee's Sale on June 21, 2010, noticing a July 13, 2010 sale date. (Third Notice of Trustee's Sale, Ex. G (# 11–7).) The sale was postponed for a third time, and NDSC recorded a fourth Notice of Trustee's Sale on December 16, 2010, noticing a January 13, 2011 sale date. (Fourth Notice of Trustee's Sale, Ex. H (# 11–8).) The sale was again postponed.

On September 27, 2011, Plaintiff filed a complaint in state court, asserting the following nine claims for relief, all sounding in wrongful foreclosure: (1) Debt Collection Violations; (2) Violation of Unfair and Deceptive Trade Practices Act; (3) Violation of Unfair Lending Practices, N.R.S. 598D.100; (4) Violation of Covenant of Good Faith and Fair Dealing; (5) Violation of NRS 107.080 et seq.; (6) Quiet Title Action; (7) Fraud in the Inducement and Through Omission; (8) Slander of Title; and (9) Abuse of Process. (Compl. ( 1–2, 1–3).) Plaintiff also recorded a Notice of Lis Pendens against the property. (Notice of Lis Pendens, Ex. I (# 11–9).)

On November 9, 2011, the case was removed to federal court. (Pet. for Removal (# 1).) Also on November 9, 2011, Defendant Silva filed a Motion to Dismiss (# 3). Plaintiff did not respond and there was no reply.

On January 20, 2012, Plaintiff filed a Motion to Add Indispensable Party (# 10) seeking to add HSBC as a defendant. There was neither a response nor a reply.

On February 16, 2012, Defendant ASC filed a Motion to Dismiss (# 11). Plaintiff filed her Opposition (# 12) March 3, 2012. ASC replied (# 16) on April 5, 2012.

II. Motion to Dismiss Standard

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) will only be granted if the complaint fails to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868 (2009) (clarifying that Twombly applies to pleadings in “all civil actions”). On a motion to dismiss, except where a heightened pleading standard applies, “we presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)) (alteration in original); see also Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (noting that “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the ... claim is and the grounds upon which it rests.”) (internal quotation marks omitted). Moreover, “[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the non-moving party.” In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir.1996) (citation omitted).

Although courts generally assume the facts alleged are true, courts do not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Accordingly, “[c]onclusory allegations and unwarranted inferences are insufficient to defeat a motion to dismiss.” In re Stac Elecs., 89 F.3d at 1403 (citation omitted).

Review on a motion pursuant to Fed.R.Civ.P. 12(b)(6) is normally limited to the complaint itself. See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir.2001). If the district court relies on materials outside the pleadings in making its ruling, it must treat the motion to dismiss as one for summary judgment and give the nonmoving party an opportunity to respond. Fed. R. Civ. P. 12(d); see United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). “A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.” Ritchie, 342 F.3d at 908.

If documents are physically attached to the complaint, then a court may consider them if their “authenticity is not contested” and “the plaintiff's complaint necessarily relies on them.” Lee, 250 F.3d at 688 (citation, internal quotations, and ellipsis omitted). A court may also treat certain documents as incorporated by reference into the plaintiff's complaint if the complaint “refers extensively to the document or the document forms the basis of the plaintiff's claim.” Ritchie, 342 F.3d at 908. Finally, if adjudicative facts or matters of public record meet the requirements of Fed.R.Evid. 201, a court may judicially notice them in deciding a motion to dismiss. Id. at 909;seeFed.R.Evid. 201(b) (“A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”).

III. Discussion

Because the two Motions to Dismiss ( 3, 11) make similar arguments with respect to each of Plaintiff's claims, the Court will address the arguments together.

A. First Cause of Action for Debt Collection Violations

Plaintiff's first cause of action alleges that Defendants violated Nevada Revised Statute 649.370, which provides that any violation of the Federal Fair Debt Collection Practice Act (“FDCPA”) is a violation of Nevada law. Plaintiff's claim fails as a matter of law because foreclosure pursuant to a deed of trust does not constitute debt collection under the FDCPA. Camacho–Villa v. Great W. Home Loans, No. 3:10–cv–00210, 2011 WL 1103681 at *4 (D.Nev. Mar. 23, 2011). Therefore, Plaintiff's first claim must be dismissed without leave to amend.

B. Second Cause of Action for Violation of Unfair and Deceptive Trade Practices Act

Plaintiff's second cause of action for violation of the Nevada Unfair and Deceptive Trade Practices Act, Nev. Rev. Stat. § 598.0923, also fails as a matter of law. The statute provides that a person engages in deceptive trade practices when he or she knowingly conducts his or her business or occupation without all required state, county, or city licenses. Nev. Rev. Stat. § 598.0923(1). However, the statutes explicitly state that the following activities do not constitute doing business in Nevada: (1) maintaining, defending or settling any proceeding; (2) creating or acquiring indebtedness, mortgages and security interests in real or personal property; and (3) securing or collecting debts or enforcing mortgages and...