Opinion
3:13-cv-00371-RCJ-VPC
2013-10-15
GARY J. DUARTE et al., Plaintiffs, v. WELLS FARGO BANK, N.A. et al., Defendants.
ORDER
This case arises out of the foreclosure of a rental property. Defendant Malcolm & Cisneros has moved to dismiss for failure to state a claim, and Plaintiffs have asked the Court to reconsider its previous grant of Trustee Corps' and Wells Fargo Bank's separate motions to dismiss. For the reasons given herein, the Court grants the motion to dismiss and denies the motion to reconsider.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs Gary and Ellen Duarte gave lender Wells Fargo a $213,600 promissory note to refinance property at 1101 Los Amigos Dr., Sparks, NV 89434 (the "Property"), secured by a deed of trust (the "DOT") against the Property given to trustee United Title of Nevada ("United Title"). (See DOT 1-3, Jan. 25, 2007, ECF No. 6-1). Mortgage Electronic Registration Systems, Inc. does not appear to be a party to or third-party beneficiary of the DOT. MTC Financial, Inc., d.b.a. Trustee Corps, as purported attorney-in-fact for Wells Fargo, substituted itself as trustee in place of United Title. (See Substitution, June 13, 2012, ECF No. 6-2). Because it was signed after July 1, 2011, the Substitution, assuming it was otherwise proper, was effective when recorded on June 19, 2012. See Nev. Rev. Stat. § 107.028(4). Trustee Corps filed a Notice of Breach and Default and Election to Cause Sale (the "NOD") along with an Affidavit of Authority ("AA"), indicating a default of $13,370.88 as of July 9, 2012. (See NOD and AA, July 19, 2012, ECF No. 6-3). The Property is not eligible for mediation under Nevada's Foreclosure Mediation Program. (See FMP Certificate, Oct. 15, 2012, ECF No. 6-4). Trustee Corps noticed a trustee's sale for December 28, 2012. (See Notice of Trustee's Sale, Nov. 20, 2012, ECF No. 6-5). Trustee Corps sold the Property to Federal Home Loan Mortgage Corp. ("Freddie Mac") for $139,597 cash at a trustee's sale on March 8, 2013. (See Trustee's Deed Upon Sale, Mar. 21, 2013, ECF No. 6-7). Although the DOT was extinguished upon its own foreclosure by operation of law, Wells Fargo formally assigned the DOT to Freddie Mac, anyway. (See Assignment, Mar. 19, 2013, ECF No. 6-6).
Plaintiffs sued Wells Fargo, Trustee Corps, and Malcolm & Cisneros, A Law Corporation in state court on seven causes of action: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) statutorily defective foreclosure under section 107.080; (4) intentional interference with contractual relations; (5) equitable estoppel; (6) deceptive trade practices under section 598.0923(2)-(4); and (7) appointment of a receiver. Defendants removed. Trustee Corps and Wells Fargo separately moved to dismiss for failure to state a claim. The Court granted those motions on the merits. Plaintiffs have asked the Court to reconsider, and Malcolm & Cisneros has now separately moved to dismiss for failure to state a claim.
II. DISCUSSION
The Court previously dismissed all claims as against Wells Fargo and Trustee Corps, with leave to amend the deceptive trade practices and promissory estoppel claims. The Court noted that as to the promissory estoppel claim, Plaintiffs alleged no promise by any Defendant, but only an assurance to Plaintiffs by their own attorney. In the present motion to reconsider, Plaintiffs argue that Wells Fargo in fact made certain representations to their attorney sufficient to support a promissory estoppel claim. But Plaintiffs have not yet amended the Complaint and cannot do so via a motion to reconsider. Next, Malcolm & Cisneros asks the Court to dismiss. Plaintiffs have not timely responded.
CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 28) is GRANTED.
IT IS FURTHER ORDERED that the Motion to Reconsider (ECF No. 34) is DENIED. Plaintiffs shall have fourteen (14) days from the entry of this Order into the electronic docket to amend the promissory estoppel and deceptive trade practices claims.
IT IS SO ORDERED.
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ROBERT C. JONES
United States District Judge