Cir. 2004) (recognizing that a court is not required "to accept legal
conclusions cast in the form of factual allegations if those conclusions
cannot reasonably be drawn from the facts alleged" (internal quotation
omitted)), particularly because appellants cited to no authority to support
the propriety of that legal conclusion, see Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1990) ("Dismissal can be based on the lack of a
cognizable legal theory or the absence of sufficient facts alleged under a
cognizable legal theory.").
Thus, the district court properly recognized the validity of the
deed of trust in ruling on respondents' NRCP 12(b)(5) motions. In this
regard, dismissal of appellants' slander of title claim was proper because
appellants did not allege a false statement regarding the title to their
property. See Exec. Mgmt., Ltd. v. Ticor Title Ins. Co., 114 Nev. 823, 842,
963 P.2d 465, 478 (1998) ("Slander of title involves false and malicious
communications, disparaging to one's title in land, and causing special
damage." (internal quotation omitted)). Specifically, appellants' allegation
that the recorded assignment contained false information about the title to
their property was contradicted by the acknowledgement in their
complaint that they executed the deed of trust that was referenced in the
assignment. See Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d
1112, 1115 (9th Cir. 2014) (observing that factual allegations in a
complaint that are contradicted by documents attached to the complaint
need not be accepted as true). Thus, the assignment's reference to the
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deed of trust did not convey false information about the title to appellants'
property.'
Appellants' quiet title claim was properly dismissed for similar
reasons. In particular, the complaint's allegation that HSBC Bank does
not hold a security interest in the subject property is contradicted by the
acknowledgment in appellants' complaint that they executed the recorded
deed of trust that was subsequently assigned (along with the promissory
note expressly referenced in the deed of trust as the one "signed by"
appellants) to HSBC Bank. 2 See Gonzalez, 759 F.3d at 1115. Thus,
appellants failed to allege facts sufficient to warrant a judicial
determination that their property should be declared unencumbered by
the deed of trust.
As for appellants' breach of contract claim against Bank of
America, the district court correctly found that the only "contract"
identified in the complaint was appellants' home loan, and it was
'Nor are we persuaded by appellants' suggestion that the
assignment's reference to an incorrect loan identification number or an
incorrect interest rate somehow conveyed information about the title to
appellants' property, false or otherwise.
2While appellants suggest that the district court's characterization
of HSBC Bank as the "note holder" conflicts with this court's discussion of
"holder in due course" status in Schettler v. RalRon Capital Corp., 128
Nev., Adv. Op. 20, 275 P.3d 933 (2012), this court has never held that one
must be a holder in due course to enforce a note. See Leyva v. Nat'l
Default Servicing Corp., 127 Nev., Adv. Op. 40, 255 P.3d 1275, 1280-81
(2011) (recognizing that a note holder or a transferee may be entitled to
enforce a note); see also Edelstein v. Bank of N.Y. Mellon, 128 Nev., Adv.
Op. 48, 286 P.3d 249, 260-61 (2012) (concluding that MERS, in addition to
having the authority to assign a deed of trust, has the authority to
transfer the corresponding note).
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undisputed that Bank of America was neither the originator nor an
assignee of that loan. 3 See Clark Cnty. v. Bonanza No. 1, 96 Nev. 643,
648-49, 615 P.2d 939, 943 (1980) ("As a general rule, none is liable upon a
contract except those who are parties to it."); see also Gonzalez, 759 F.3d at
1115. Thus, to the extent that appellants sought to hold Bank of America
liable on a contract to which Bank of America was not a party, appellants
cited to no authority suggesting that this was a legally cognizable claim
for relief. 4 Bonanza No. 1, 96 Nev. at 648-49, 615 P.2d at 943; see
Balistreri, 901 F.2d at 699.
As for appellants' negligent misrepresentation claim, their
complaint failed to allege that they relied on information provided by
Bank of America and that this reliance caused them pecuniary loss in a
business transaction. See Barmettler v. Reno Air, Inc., 114 Nev. 441, 449,
956 P.2d 1382, 1387 (1998) (recognizing that one element of a negligent
misrepresentation claim is that the plaintiff must rely on the
misrepresentation in engaging in a "business or commercial transaction"). 5
Appellants' suggestion that the assignment constituted a contract
3
between themselves and Bank of America is without merit.
4Appellants' reliance on Lanini v. JPMorgan Chase Bank, No. 2:13-
CV-00027 KJM EFB, 2014 WL 1347365, at *5 (E.D. Cal. April 4, 2014),
and Deschaine v. IndyMac Mortg. Servs., No. CIV. 2:13-1991 WBS CKD,
2014 WL 281112, at *6 (E.D. Cal. Jan. 23, 2014) is misplaced, as those
cases did not address the specific issue of whether a loan servicer could be
considered a party to a loan agreement between a lender and a borrower.
51n this regard, appellants' only allegation of reliance is that they
paid the allegedly higher-than-agreed-upon monthly mortgage statements.
Whether or not this constitutes "reliance," appellants' monthly mortgage
payments were not business transactions. See Barmettler, 114 Nev. at
449, 956 P.2d at 1387 (affirming summary judgment when the plaintiffs
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As for appellants' declaratory relief claim, appellants failed to
allege (beyond their causes of action previously addressed) the existence of
any dispute between the parties warranting judicial resolution. Thus, the
district court properly dismissed that claim.° Accordingly, we
ORDER the judgment of the district court AFFIRMED.
1
Saitta
J.
J.
Gibbons
cc: Hon. Michael Villani, District Judge
Stephen E. Haberfeld, Settlement Judge
Feldman Graf
Gerrard Cox & Larsen
Akerman LLP/Las Vegas
Eighth District Court Clerk
...continued
negligent misrepresentation claim "d[id] not fit squarely within a business
or commercial transaction").
°If appellants were simply seeking a declaration as to which note
and rider governed the terms of their loan, then the declaratory relief
claim may have been improperly dismissed. But because appellants were
seeking a declaration that their property was altogether unencumbered by
the deed of trust and that they owed no money under either promissory
note, we agree with the district court's dismissal of the declaratory relief
claim.
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