Claros v. Landamerica Onestop, Inc.
2:10-cv-01788
D. Nev.Mar 24, 2011Background
- Claros refinanced his Las Vegas home in 2004; First Horizon was lender, Fidelity National Title trustee, and MERS beneficiary.
- Default occurred in 2008/2009; LandAmerica Onestop, as agent for MERS, issued a notice of default.
- Claros hired S.B. Management to modify the loan; S.B. Management allegedly promised to pay off the loan but failed to perform.
- In 2010 MERS transferred the beneficial interest to MetLife; UTLS became trustee and a trustee sale was scheduled; sale occurred in June 2010 with MetLife acquiring title, later transferred to Fannie Mae.
- Claros asserted TILA claims (two) plus NRS 107.080 claim and a wrongful foreclosure claim; defendants moved to dismiss.
- Court granted all motions to dismiss, noting timeliness issues for TILA, lack of tender, and compliance with NRS 107.080; judicial notice was taken for the recorded Notice of Breach and Default.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TILA claims are time-barred or non-tair meaningful | Claros seeks damages and rescission under TILA. | TILA claims are outside statute of limitations and no tender. | TILA claims dismissed as time-barred and untenderable. |
| Whether wrongful foreclosure is actionable where borrower was in breach | Wrongful foreclosure action should proceed despite breach by borrower. | Foreclosure valid as borrower breached deed of trust terms. | Wrongful foreclosure claim dismissed; breach found by Claros at time of foreclosure. |
| Whether NRS 107.080 notice requirements were substantially complied with | Defendants failed to properly notify of the trustee sale. | Notice of breach and default substantially complied; mail was sent. | NRS 107.080 claim dismissed; substantial compliance found. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (two-step plausibility standard for pleadings)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Yamamoto v. Bank of N.Y., 329 F.3d 1167 (9th Cir. 2003) (tender requirement for rescission under TILA)
- Collins v. Union Fed. Sav. & Loan Ass'n, 662 P.2d 610 (Nev. 1983) (wrongful foreclosure requires no breach by mortgagor at time of sale)