Opinion
Case No. 2:11-CV-00426-KJD-LRL.
October 18, 2011
ORDER
Presently before the Court is Defendant Wells Fargo Home Mortgage's Motion to Dismiss (#14). Though the time for doing so has passed, Plaintiff has failed to respond or otherwise oppose Defendant Wells Fargo's motion to dismiss. Therefore, in accordance with Local Rule 7-2(d) and good cause being found, the Court grants the motion to dismiss.
Plaintiff's first claim for breach of the loan modification contract must be dismissed, because he either failed to accept the terms of the contract by refusing to pay the $1,878.82 service charge required by the modification or he first breached the agreement by refusing to pay it. Plaintiff's second claim for relief for unfair lending practices arising under NRS 598D.100(1)(c) must be dismissed, because Nevada's Unfair Lending Practices Statute, NRS 598D.100, et. seq., does not apply to Plaintiff's purchase money mortgage, Wells Fargo is not a lender as defined in the statute, and the service charge is not a prepayment penalty that was financed. Plaintiff's third cause of action for breach of the covenant of good faith and fair dealing must be dismissed because Wells Fargo did not breach the contract. Plaintiff's fourth cause of action for tortious breach of the covenant of good faith and fair dealing must be dismissed because no "special relationship" creating a fiduciary duty existed. Finally, Plaintiff's claims for declaratory relief must be denied, because, as alleged, Plaintiff has failed to demonstrate that Wells Fargo violated Nevada statute, that foreclosure has actually occurred, and that he was not in default on his loan or that he was capable of tendering the undisputed amount due and payable.
Accordingly, IT IS HEREBY ORDERED that Defendant Wells Fargo Home Mortgage's Motion to Dismiss (#14) is GRANTED;
IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendants Wells Fargo Home Mortgage and Wells Fargo Bank, N.A., d/b/a America's Servicing Company and against Plaintiff.