Moore v. Ditech Financial, LLC
2:16-cv-01602
D. Nev.Jun 7, 2017Background
- In 2005 Moore obtained a $1,000,000 mortgage and later a HELOC; MERS was named beneficiary and the Deed of Trust was later assigned to Bank of New York Mellon.
- Moore defaulted by 2009; notices of trustee sale were recorded but no completed foreclosure is pleaded.
- Moore previously sued MERS and ReconTrust in 2011; those claims were dismissed or resolved against him in 2013.
- In this case Moore sues different banks/servicers asserting wrongful foreclosure, quiet title, and TILA-based rescission; he also recorded a lis pendens.
- Defendants moved to dismiss and to expunge the lis pendens; the court considered the pleadings and recorded documents judicially noticeable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wrongful foreclosure | Moore contends defendants wrongfully attempted to foreclose based on defective chain of title | No completed foreclosure occurred; Moore remained in default and lacks facts showing nondefault | Dismissed — plaintiff failed to plausibly allege a foreclosure or lack of default; no leave to amend |
| TILA rescission | Moore claims defendants failed to provide required TILA disclosures (Right to Cancel) and seeks rescission | TILA rescission inapplicable to residential mortgage transactions; untimely (statute of limitations); plaintiff conceded by failing to oppose | Dismissed — rescission unavailable as a matter of law and time-barred; claim conceded; no leave to amend |
| Quiet title / declaratory relief | Title should be quieted in Moore's favor due to alleged chain-of-title defects and securitization issues | Recorded assignments, substitutions, and notices show authority to act; Moore remains in default and lacks present property interest | Dismissed — Moore has not shown an interest or discharged debt; title presumptively favors record holder; no leave to amend |
| Lis pendens expungement | Moore recorded a lis pendens asserting his property claim | Defendants argue lis pendens is baseless because Moore cannot establish the necessary elements (no viable claim, no injury) | Granted — lis pendens expunged; Moore ordered to record the order with the county recorder |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (factual allegations must plausibly support relief)
- Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015) (TILA rescission limitations clarified)
- Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034 (9th Cir. 2011) (MERS involvement does not preclude foreclosure by assignee)
- Breliant v. Preferred Equities Corp., 918 P.2d 314 (Nev. 1996) (burden on plaintiff to prove good title in quiet title action)
- Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610 (Nev. 1983) (wrongful foreclosure requires allegation of nondefault)