Nordeen v. Taylor, Bean & Whitaker Mortgage Co. (In re Nordeen)
489 B.R. 203
D. Nev.2013Background
- Nordeen debtors in a Chapter 13 case filed a pro se adversary proceeding in the bankruptcy court against TBW and Ocwen over foreclosure of 7821 Bright Heights St., Las Vegas, NV 89131.
- Claims asserted: Quiet Title, Fraud, Perjury, Unjust Enrichment, and violations of RESPA, TILA, and FDCPA.
- Bankruptcy Court dismissed all claims for failure to state a claim, without leave to amend.
- Appeal to district court; standard of review: de novo for law, clear error for factual findings; Article III judge demand not requested.
- District Court affirm in part, reverse in part, and remand, reversing the dismissal of the quiet title claim but affirming the rest.
- Perjury claim barred by lack of private right of action; unjust enrichment rejected when a contract governs; RESPA/TILA pleadings deemed insufficient; FDCPA addressed as to status of debt collector.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Quiet title viability given securitization and alleged extinguishment | Nordeen alleges TBW forgave debt before transfer, extinguishing note and security interest. | Securitization does not extinguish debt absent contract language; no statutory defect pleaded. | Quiet title claim reversed and remanded for factual resolution. |
| Fraud claim sufficiency regarding note/deed terms | Fraud alleged in lender’s conduct, not just misrepresentations on terms. | Fraud did not affect note/deed terms or reliance; common arguments rejected. | Fraud claim affirmed as properly dismissed. |
| Private right of action for perjury | Perjury claim should be actionable as a private right. | No private right of action for criminal perjury exists. | Perjury claim affirmed as properly dismissed. |
| Unjust enrichment where contract governs | Unjust enrichment should lie despite contract. | Contract governs relationship; unjust enrichment not available. | Unjust enrichment claim affirmed as properly dismissed. |
| RESPA/TILA/FDCPA pleading adequacy | Claims implicated RESPA/TILA/FDCPA despite sparse pleading. | Insufficient factual pleading and improper reliance; FDCPA analysis limited. | RESPA/TILA grounded claims dismissed; FDCPA analysis upheld. |
Key Cases Cited
- Blausey v. U.S. Trustee, 552 F.3d 1124 (9th Cir. 2009) (de novo and clear error standards for bankruptcy appeals)
- In re Straightline Invs., Inc., 525 F.3d 870 (9th Cir. 2008) (de novo review of legal conclusions; clear error for facts)
- Barmettler v. Reno Air, Inc., 114 Nev. 441, 956 P.2d 1382 (Nev. 1998) (fraud claims; reliance and contract relevance)
- Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir. 1985) (debt collector status and FDCPA applicability to lienholders)
- LeasePartners Corp. v. Robert L. Brooks Trust Dated Nov. 12, 1975, 113 Nev. 747, 942 P.2d 182 (Nev. 1997) (unjust enrichment when contract governs)
- Kress v. Corey, 65 Nev. 1, 189 P.2d 352 (Nev. 1948) (quiet title and property rights considerations)