LLOYD D. GEORGE, District Judge.
Quality Loan Service Corporation (Quality), First Tennessee Bank National Association (successor in interest by merger to First Horizon Home Loan Corporation) (First Horizon),
This matter is the second complaint filed by Beekhof that has come before the undersigned regarding the foreclosure of property located at 1125 Mill Street, Gardnerville, Nevada. The prior complaint, filed as a putative class action with 80 named plaintiffs (including Beekhof concerning the Mill Street property), named (among others) the defendants who move to dismiss the present complaint: Quality, First Tennessee, and MetLife as defendants. The prior original complaint alleged claims for wrongful foreclosure, unjust enrichment, conspiracy to commit wrongful foreclosure, conspiracy to commit fraud, injunctive relief, and declaratory relief. The present complaint alleges claims for fraud in the inducement, violation of NRS 107.080, conspiracy to violate NRS 107.080, breach of the covenant of good faith and fair dealing or interference in contractual relations, unjust enrichment, slander of title, and abuse of process.
Many of the allegations and assertions in both the prior and present complaint mirror each other. In the present action, the plaintiff alleges at the outset of his complaint:
In the prior original complaint, the plaintiff alleged at the outset of his complaint:
In addition, paragraph 21 of the present complaint alleges:
Paragraph 115 of the prior original complaint alleges:
The prior complaint was transferred to the District of Arizona as part of a multi-district litigation. The MDL court retained jurisdiction of claims related to the formation and/or operation of the MERS system, and remanded plaintiff's claim for unjust enrichment based on loan origination issues, and plaintiff's claims for injunctive and declaratory relief to the extent they were based on loan origination issues. On January 21, 2011, the undersigned granted the motions of numerous defendants, including MetLife, to dismiss the prior complaint's claim of unjust enrichment, and the claims of injunctive and declaratory relief to the extent they were based on the loan origination issues underlying the claim of unjust enrichment.
On June 4, 2011, the plaintiff (as part of the putative class action) filed a consolidated amended complaint in the MDL. That consolidated amended complaint alleged, inter alia, a claim that Quality violated NRS §107.080 with respect to the same property as to which Beekhof alleges, in the present suit, that Quality violated §107.080.
The defendants' motions to dismiss, to the extent brought pursuant to Fed. R. Civ. P. 12(b)(6), challenge whether the plaintiff's complaint states "a claim upon which relief can be granted." In ruling upon this motion, the court is governed by the relaxed requirement of Rule 8(a)(2) that the complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." As summarized by the Supreme Court, a plaintiff must allege sufficient factual matter, accepted as true, "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Nevertheless, while a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id., at 555 (citations omitted). In deciding whether the factual allegations state a claim, the court accepts those allegations as true, as "Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Further, the court "construe[s] the pleadings in the light most favorable to the nonmoving party." Outdoor Media Group, Inc. v. City of Beaumont, 506 F3.d 895, 900 (9
However, bare, conclusory allegations, including legal allegations couched as factual, are not entitled to be assumed to be true. Twombly, 550 U.S. at 555. "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal 556 U.S. ___, 129 S.Ct. 1937, 1949 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id., at 1950. Thus, this court considers the conclusory statements in a complaint pursuant to their factual context.
To be plausible on its face, a claim must be more than merely possible or conceivable. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not `show[n]'-`that the pleader is entitled to relief." Id., (citing Fed. R. Civ. Proc. 8(a)(2)). Rather, the factual allegations must push the claim "across the line from conceivable to plausible." Twombly. 550 U.S. at 570. Thus, allegations that are consistent with a claim, but that are more likely explained by lawful behavior, do not plausibly establish a claim. Id., at 567.
The Court will dismiss Beekhof's claims. To the extent review of his present claims is not barred by his prior lawsuit, due either to issue preclusion or exclusive jurisdiction in that prior matter, his present complaint fails to state a cognizable claim. Initially, Beekhof's argument that res judicata does not apply because he voluntarily dismissed his prior case is without merit. First, Beekhof did not voluntarily dismiss his prior case. At most, as he filed his voluntary dismissal only in that portion of his prior case being heard by the undersigned, which heard those claims remanded from the MDL action to this district, Beekhof could only dismiss his remanded claims. Second, Beekhof voluntarily dismissed, without prejudice, only those remanded claims that remained pending in this district at the time he filed his voluntary dismissal. Prior to his voluntary dismissal, the undersigned, as the judge presiding over the prior remanded claims, granted MetLife's and First Horizon's motions to dismiss Beekhof's claims for unjust enrichment, injunctive relief, and declaratory relief that had been remanded from the MDL court. Third, Beekhof's reference to his failure to oppose a number of the pending motions to dismiss his remanded claims, which operated as a consent to the granting of the motions under Local Rule 7-2(d), is irrelevant. The consent resulting from a failure to oppose under LR 7-2(d) is a consent to the granting of the motion on the merits of that motion. Beekhof's failure to oppose operates as an agreement, on the merits of the pending motions, that his prior complaint failed to state a cognizable claim. Beekhof cannot escape the preclusive effect of that order by now asserting that he "consented" to the granting of the motion, or by arguing that he later voluntarily dismissed whatever claims remained pending.
Beekhof's argument that the exercise of jurisdiction by the MDL court over the non-remanded claims does not defeat the jurisdiction of this Court is also without merit. At issue is whether another court (state or federal) is exercising jurisdiction over the res in an action that is in rem or quasi in rem in nature. His assertion that his prior action attacked the instrument relied upon for the foreclosure while his present action attacks the parties executing the foreclosure is irrelevant. Both actions concern the propriety of foreclosure of the same res, and the first court to have jurisdiction over that res has exclusive jurisdiction over that res. Further, that prior action precludes this Court from revisiting the propriety of the instruments relied upon in the foreclosure. Stated otherwise, even assuming that this Court could exercise jurisdiction over the res, the Court would be limited to considering only those arguments that proceed on the basis that the underlying instruments are valid. The allegations of Beekhof's complaint clearly indicate that, as in his prior complaint, the present complaint attacks the instruments underlying the foreclosure.
As noted, what remains of Beekhof's claims (after eliminating all allegations and claims barred due to Beekhof's prior complaint) fails to state cognizable claims. Beekhof concedes he cannot maintain his claim for fraud in the inducement against Quality. Conceding that his loan originated in April 2005, and that he filed his present action in July 2011, Beekhof argues
Beekhof then argues that he alleged facts showing First Horizon knew that its representation was false by alleging that First Horizon knew that its business practice was creating an unnatural demand for housing, causing home prices to escalate above their reasonable value, and further knew that the continued practice of lending money to a large number of unqualified buyers would cause the market to crash. The argument is irrelevant, as the alleged false representation was that Beekhof was qualified for a loan. Merely alleging that First Horizon
In sum, Beekhof's claim for fraud in the inducement accrued in April, 2005, and he has not shown that the claim should be equitably tolled until after July 1, 2008. Rather, the allegations of his complaint preclude any such inference. Therefore, the Court will dismiss this claim with prejudice as to Quality and First Horizon. The Court would further note that it would also enter such an order as to MetLife if Beekhof had alleged this claim against MetLife.
Pursuant to Beekhof's sub-title to his second claim for relief for violations of §107.080, he has brought it against MetLife and Quality, but not against First Horizon. However, he has named all three as defendants in his third claim for relief for conspiracy to violate §107.080.
As noted by all Defendants, §107.080 does not provide for a private right of action for tort damages.
Further, even if Beekhof could maintain his claim against the Defendants on his claim for violating §107.080 in his present complaint, his default precludes any meaningful relief under §107.080. In opposition, Beekhof argues that Quality lacked authority to initiate foreclosure proceedings. Absent from the complaint, however, is any allegation of fact permitting a plausible inference that, as of July 1, 2011, Quality lacked authority to proceed with the foreclosure sale. Even assuming Quality lacked authority to initiate foreclosure proceedings, Beekhof's uncured default and lack of tender to cure that default preclude any meaningful remedy.
Beekhof's opposition fails to respond to the defendants' arguments that he cannot maintain his claim for conspiracy to violate §107.080 if his §107.080 claim fails, and that he has failed to allege the conspiracy with the requisite specificity. The court agrees that Beekhof has failed to allege, with requisite specificity, facts supporting a plausible inference of a conspiracy to violate §107.080.
Accordingly, the Court will dismiss Beekhof's claims for violation of §107.080 and for conspiring to violate §107.080.
Beekhof concedes that this claim should be dismissed as to Quality. Beekhof's opposition to the motion of MetLife and First Horizon is confusing. He has titled the subsection "Plaintiff's Breach of Duty of Good Faith Claim is Not Made Against First Horizon." This would suggest a concession that the claim should also be dismissed as to First Horizon. The remainder of Beekhof's argument in this subsection of his opposition, however, refers only to First Horizon. Thus, lacking from Beekhof's opposition is any opposition to MetLife. Having reviewed Beekhof's complaint, which alleges only conduct by MetLife and does not reference First Horizon (other than to name it in the sub-title to the claim), the Court finds that Beekhof also concedes that his claim is not made against First Horizon, and that Beekhof's subsequnt references to First Horizon are erroneous and were intended as references to MetLife.
Even as to MetLife, Beekhof has not proffered any meaningful or understandable argument suggesting that he alleged a viable claim for breach of the implied covenant of good faith and fair dealing. The opposition fails to identify any allegation suggesting that, pursuant to the terms of the contract between MetLife and Beekhof, the contract imposed a good faith obligation on MetLife to modify the terms of the Beekhof's loan. Dismissal of the claim for breach of good faith is warranted as to each of the moving defendants.
Beekhof's claim of unjust enrichment fails against MetLife and First Horizon as barred by res judicata and because he cannot bring such a claim against them for actions taken pursuant to a contract to which he is a party. Beekhof's claim of unjust enrichment fails as to Quality because (a) he cannot bring such a claim against Quality for actions taken pursuant to a contract to which he is a party, and (b) he has not alleged that he conferred a benefit on Quality that is not governed by a contract to which he is a party. Dismissal of these claims is appropriate as to each of the moving defendants.
"[A] claim for slander of title requires `false and malicious communications, disparaging to one`s title in land, and causing special damages.'" Exec. Mgmt., Ltd. v. Ticor Title Co., 963 P.2d 465, 478 (Nev. 1998). Once again, Beekhof's opposition to MetLife and First Horizon's motion is confusing. The opposition addresses
In his complaint, Beekhof alleges that MetLife and Quality caused a defective notice of default to be recorded against the title to his property that claims an interest in the property. He further alleges that any purported transfer in the property was wrongful and invalid because the Notice of Default was invalid, and thus foreclosure will be invalid. As between Beekhof's complaint and his oppositions, the Court cannot discern any allegation of fact permitting a plausible inference of a false communication disparaging Beekhof's title. Beekhof offers no authority suggesting that Quality's communications of authority to initiate or complete foreclosure on his property constitute a claim of ownership in the property. Further, to the extent Beekhof is alleging the slander occurred in the communication of his default, the fact of his default precludes a finding that such communication of his default was either false or malicious. Dismissal of Beekhof's claim for slander of title is appropriate as to each of the moving defendants.
Abuse of process requires the following legal elements: "(1) an ulterior purpose by the defendants other than resolving a legal dispute, and (2) a willful act in the use of the legal process not proper in the regular conduct of the proceeding." LaMantia v. Redisi, 118 Nev. 27, 30, 38 P.3d 877, 879 (2002). Legal process (in the context of a claim for abuse of process) refers to process taken pursuant to judicial authority. The foreclosure process at issue in this action was a non-judicial foreclosure, and thus not a legal process the abuse of which would support a claim for abuse of process. That the result of a non-judicial foreclosure has "legal implications," or might ultimately result in an unlawful detainer action does not transform a non-judicial foreclosure into a legal process taken pursuant to judicial authority. Dismissal of this claim is appropriate as to each of the moving defendants.
THEREFORE, for good cause shown,
THE COURT
THE COURT FURTHER
THE COURT FURTHER
