Story-McPherson v. Bank Of America, N.A., 2:11-cv-01470

Plaintiffs Tracy Story-McPherson and Sterling G. McPherson purchased 28 Knightsboro Road, Henderson, NV in November 2003.
They refinanced the loan in December 2003 with Bank of America, N.A. as lender and PRLAP, Inc. as Trustee under the Deed of Trust.
In spring 2009, plaintiffs sought loan modification due to hardship; Cal-Western Reconveyance substituted as Trustee in October 2009.
A Notice of Breach and Default was recorded by Cal-Western in November 2009; plaintiffs filed Chapter 13 bankruptcy in November 2009.
Plaintiffs signed a loan modification agreement in December 2009; BOA did not sign until May 20, 2011; bankruptcy action was dismissed in February 2010 for failure to appear.
Foreclosure sale occurred May 10, 2010, with the Trustee’s Deed Upon Sale recorded May 24, 2010 in the name of Vadim Osipov; plaintiffs allege improper handling and postponement of sale.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of plaintiffs’ response to motion to dismiss	Story-McPherson argued delay was minor and not prejudicial	Bank argues failure to comply with Local Rule 7-2(d) merits dismissal	Dismissal unnecessary; factors weigh in plaintiffs’ favor and sanction not warranted
Wrongful foreclosure claim viability	Foreclosure caused by defendant’s actions, possibly excused breach	Foreclosure valid due to plaintiffs’ alleged breach	Wrongful foreclosure claim survives to be further evaluated
Negligent misrepresentation viability	Four misrepresentations about postponing/stopping the sale caused reliance and damages	Lender not liable for misrepresentations lacking requisite basis	Claim survives the motion to dismiss
Negligence per se viability under NRS ch. 107	Defendant violated regulatory statute; harm intended to prevent	No specific sections alleged or conduct shown	Claim granted with leave to amend
Breach of fiduciary duty	Lender-borrower relationship could be fiduciary under exceptional circumstances	Arms-length loan arrangement generally not fiduciary	Motion granted as to breach of fiduciary duty (no fiduciary duty shown)

Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995) (failure to follow district rules supports dismissal in proper cases)
Yourish v. California Amplifier, 191 F.3d 983 (9th Cir. 1999) (expedite disposition considerations; public policy favors timely resolution)
Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658 (9th Cir. 1998) (two-step Iqbal/Twombly plausibility standard application)
Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (9th Cir. 1997) (strong presumption against dismissing for failure to state a claim)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard; two-prong analysis)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state plausible claims for relief)
Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610 (Nev. 1983) (elements of wrongful foreclosure in Nevada analysis)
Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865 (9th Cir. 2007) (limits fiduciary duty in borrower-lender context)
United States v. Peck, 102 U.S. 64 (1880) (contractual performance concepts cited in frustration of performance)