John G. Florendo and Deborah P. Florendo v. The Bank of New York Mellon, et al.

Opinion

5 * * *

6 JOHN G. FLORENDO, an individual; Case No. 2:25-cv-02370-MMD-DJA DEBORAH P. FLORENDO, an individual, Plaintiffs, 8 v.

9 THE BANK OF NEW YORK MELLON, et al., 10 Defendants. 11 13 In their First Amended Complaint, filed in February 2026, pro se Plaintiffs John G. 14 Florendo and Deborah P. Florendo assert multiple claims generally alleging wrongful 15 foreclosure and related misconduct regarding their property located at 9 Summit Walk 16 Trail, Henderson, Nevada 89052-6696 (the “Property”) against Defendant1 The Bank of 17 New York Mellon fka The Bank of New York, as Successor Trustee to JP Morgan Chase 18 Bank, N.A., as Trustee for the Holders of Sami II Trust 2006-AR7 (“BONY”). (ECF No. 18 19 (“FAC”).) Before the Court is Defendant BONY’s motion to dismiss all claims asserted 20 against it (ECF No. 19 (“Motion”).)2 BONY also filed a request for judicial notice along 21 22 23

24 1Additional named Defendants include: Affinia Default Services (“Affinia”); ROES 1-10 and DOES 1-10, inclusive, representing “a class of unknown persons who claim or 25 have the right to claim an interest in certain real property located at 9 Summit Walk Trail, Henderson, NV 89052-6696.” (ECF No. 18 at 1.) The Court sua sponte dismisses these 26 defendants based on claim preclusion. A court “may properly on its own motion dismiss an action as to defendants who have not moved to dismiss where such defendants are in 27 a position similar to that of moving defendants or where claims against such defendants are integrally related.” Silverton v. Dep't of the Treasury, 644 F.2d 1341, 1345 (9th Cir. 28 1981); see also Abaghinin v. Amvac Chem. Corp., 545 F.3d 733, 742-743 (9th Cir. 2008). 2 because Plaintiffs' case is barred by the doctrine of claim preclusion. 4 The following facts are primarily adapted from the FAC (ECF No. 18) and the 5 publicly recorded documents referenced therein. This action arises from a dispute 6 concerning the authority to foreclose on the Property. (Id. at 3.) 7 On or about June 16, 2006, Plaintiffs refinanced their home by executing a 8 promissory note (the “Note”) in favor of Republic Mortgage, LLC dba Republic Mortgage. 9 (Id. at 5.) The Note was secured by a Deed of Trust (“DOT”) recorded against the 10 Property. (Id.; ECF No. 20-1.) Plaintiffs acknowledge that they subsequently defaulted on 11 their Note and DOT (collectively, the “Loan”) by failing to make their March and April 2008 12 payments. (ECF No. 18 at 5.) As a result, a “Notice of Default and Election to Sell Under 13 Deed of Trust” (“2008 NOD”) was executed and recorded in October 2008. (Id. at 5-6.) In 14 January 2011, a Corporation Assignment of Deed of Trust (“2011 Assignment”) was 15 recorded assigning the DOT to BONY. (Id. at 6.) A rescission of the prior election to 16 declare default was later recorded in December 2012. (Id.) 17 Thereafter, in September 2013, an Assignment of Deed of Trust (“2013 18 Assignment”) was recorded purporting to assign the DOT from Bank of America, N.A. to 19

20 3Defendant requests the Court take judicial notice of multiple documents of public record, including: the Deed of Trust (“DOT”) for the Property, the Assignment of DOT, the 21 2014 and 2023 Substitutions of Trustee (“SOT”), and the 2014, 2024, and 2025 Notices of Default (“NOD”). (ECF No. 20 at 1-2.) Defendant also asks the Court to take judicial 22 notice of documents filed in federal and state court in Nevada, including decisions by the District of Nevada and the Eighth Judicial District Court, Clark County, Nevada, in which 23 Plaintiffs contest foreclosure of the Property. (Id. at 2-3.) On a motion to dismiss under Rule 12(b)(6), the Court may consider materials “incorporated by reference” into the 24 complaint and may take judicial notice of “matters of public record.” See Mack v. S. Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986); see also United States v. Ritchie, 342 25 F.3d 903, 908 (9th Cir. 2003) (“A court may…consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or 26 matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.”). If the Court otherwise considers materials outside of the pleadings, 27 the motion to dismiss is converted into a motion for summary judgment. See Fed. R. Civ. P. 12(d). Accordingly, the Court takes judicial notice of the publicly recorded documents 28 as well as the documents filed in or by Nevada state court and the District of Nevada. See, e.g., Harris v. Cnty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012). 2 Plaintiffs’ claims are premised on the contention that the 2013 Assignment deprived 3 Defendant BONY of the authority to pursue foreclosure proceedings. (ECF No. 18 at 9, 4 13-14.) 5 In March 2023, BONY executed a Substitution of Trustee (“2023 SOT”) appointing 6 Affinia as trustee under the DOT. (ECF No. 20-5.) Affinia thereafter recorded a Notice of 7 Default and Election to Sell Under Deed of Trust (“2024 NOD”) in August 2024. (ECF No. 8 18 at 8; ECF No. 20-6.) In October 2025, Affinia recorded a subsequent Notice of Default 9 and Election to Sell Under Deed of Trust (“2025 NOD”) on behalf of BONY. (ECF No. 18 10 at 8; ECF No. 20-7.) The 2025 NOD appears to form the basis of Plaintiffs’ claims. In 11 particular, Plaintiffs repeatedly allege that BONY “lacks standing to authorize an Election 12 to Sell Under Deed of Trust” as a result of the 2013 Assignment. (ECF No. 18 at 9, 13- 13 14.) Stated differently, Plaintiffs claim that Defendant has “engaged in statutorily defective 14 foreclosure” and thus seeks rescission of the 2025 NOD. (Id. at 9.) 15 Plaintiffs assert multiple claims against all Defendants for statutorily defective 16 foreclosure under Nevada law (§§ NRS 107.080, 107.0805), abuse of process, and 17 declaratory relief. (ECF No. 18 at 8-16.) However, as previously stated, Plaintiffs 18 acknowledge in the FAC that they defaulted on the Loan in 2008. (Id. at 5.) The FAC does 19 not allege that Plaintiffs cured the default or tendered the amounts due under the Note. 20 Prior to filing this action, Plaintiffs also brought wrongful foreclosure challenges 21 concerning the Property in both state and federal court proceedings.4 (ECF Nos. 20-8, 22 20-9.) 23 /// 24 /// 25 4John Florendo v. Nationstar Mortgage LLC, et al., Case No. A-17-762998-C, filed 26 in the Eighth Judicial District Court, Clark County, Nevada (the “State Action”) (ECF No. 20-8); and John G. Florendo and Deborah P. Florendo v. The Bank of New York Mellon 27 FKA Bank of New York as Successor Trustee to JP Morgan Chase Bank, NA, as Trustee for the Holders of SAMI Trust 2006-AR7, Mortgage Pass-Through Certificates, Series 28 2006-AR7, et al., Case No. 2:20-cv-02088-APG-DJA, filed in the U.S. District Court, District of Nevada (the “Federal Action”) (ECF No. 20-9). 2 BONY seeks dismissal on multiple valid grounds, but the Court will only address 3 its claim preclusion argument, which it finds the most compelling.5 (ECF No. 19 at 7-8.) 4 Because the Court finds that this action is precluded as duplicative of prior cases, the 5 Court will grant dismissal. 6 “Claim preclusion is a broad doctrine that bars bringing claims that were previously 7 litigated as well as some claims that were never before adjudicated.” Clements v. Airport 8 Auth. of Washoe Cnty., 69 F.3d 321, 327 (9th Cir. 1995). “Res judicata [claim preclusion] 9 bars all grounds for recovery which could have been asserted, whether they were or not, 10 in a prior suit between the same parties in the same cause of action.” Clark v. Bear 11 Stearns & Co., Inc., 966 F.2d 1318, 1319 (9th Cir. 1992) (internal citation omitted). Stated 12 differently, claim preclusion can apply to all claims that were or could have been raised in 13 an initial case. See, e.g., Univ. of Nev. v. Tarkanian, 879 P.2d 1180, 1192 (Nev. 1994). 14 Defendant argues that Plaintiffs previously challenged foreclosure-related activity 15 concerning the Property in both the State and Federal Actions and that the present action 16 is barred by claim preclusion because it raises claims that were, or could have been, 17 asserted in those prior proceedings. (ECF No. 19 at 7; ECF No. 24 at 2.) The Court 18 agrees. 19 Under Nevada law, claim preclusion applies when: “(1) the parties or their privies 20 are the same, (2) the final judgment is valid, and (3) the subsequent action is based on 21 the same claims or any part of them that were or could have been brought in the first 22 case.” Five Star Capital Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008) (internal citations 23 omitted). Defendant has shown that all three requirements are met between the State 24 and Federal Actions and this case. 25 As to the first element, Plaintiffs asserted claims against Nationstar in the State 26 Action. (ECF No. 20-8.) Defendant contends that Nationstar, as servicer of the Loan, was 27

28 5Because the Court grants the Motion based on claim preclusion, it does not reach or address the Defendant’s remaining arguments as to other grounds for dismissal. 2 20-7).) The Court agrees. Indeed, this District has recognized that, in mortgage-related 3 litigation, “courts routinely find that business entities on the lender's side of a mortgage 4 loan – including successor and predecessor servicers, trustees, and beneficiaries [–] 5 stand in privity with one another.’” Van Damme v. Nat’l Default Servicing Co., No. 2:24- 6 cv-02376-RFB-EJY, 2025 WL 2530648, at *6 (D. Nev. Sept. 2, 2025) (“privity may be 7 found in situations where the relationship between the parties is sufficiently close to 8 supply preclusion”) (internal citations omitted). Because the record reflects that Nationstar 9 serviced the Loan and acted on BONY’s behalf in connection with foreclosure 10 proceedings, the Court finds that Nationstar and BONY are in privity for purposes of claim 11 preclusion. Moreover, BONY was, itself, a named defendant in the Federal Action. (ECF 12 No. 20-9.) Accordingly, the identity-of-parties requirement is satisfied. 13 As to the second element, the record demonstrates that valid final judgments were 14 entered in both the State and Federal Actions. (ECF Nos. 20-10, 20-11.) As to the third 15 element, the Court finds that Plaintiffs had sufficient opportunity to assert their claims 16 underlying the present action in the prior proceedings but failed to do so. Specifically, 17 Plaintiffs’ present theory—i.e., that BONY lacked foreclosure authority because of the 18 2013 assignment—arises from the same foreclosure-related events that formed the basis 19 of the earlier litigation. However, Plaintiffs failed to raise this claim in the earlier actions. 20 Accordingly, the Court concludes that the parties between the prior cases and this 21 case are sufficiently the same, or in privity with one another, valid final judgments were 22 entered, and Plaintiffs could have asserted their present claims in the earlier-filed cases. 23 The Court therefore finds that all three factors weigh in favor of finding the present action 24 barred by claim preclusion. The Court thus grants the Motion on this ground. 26 The Court notes that the parties made several arguments and cited to several 27 cases not discussed above. The Court has reviewed these arguments and cases and 28 1 || determines that they do not warrant discussion as they do not affect the outcome of the 2 || Motion before the Court. 3 It is further ordered that Defendant BONY’s motion to dismiss (ECF No. 19) is 4 || granted. 5 It is further ordered that the claims against the remaining Defendants are 6 || dismissed based on claim preclusion. 7 The Clerk of Court is directed to enter judgment in accordance with this Order and 8 || close this case. 9 DATED THIS 15" Day of June 2026. 10

12 MIRANDA M. DU 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28