Walsh v. Green Tree Serv., LLC

• Court: Nevada Supreme Court
• Decided: May 20, 2015
• Docket: 65055
• Status: Unpublished

Opinion

be permitted to amend their complaint to add Fannie Mae, the entity that

purchased the property at the foreclosure sale, and proceed against it.

We review de novo a district court order granting a motion to

dismiss. State ex rel. Johnson v. Reliant Energy, Inc., 128 Nev. Adv. Op.

No. 46, 289 P.3d 1186, 1189 (2012). In doing so, we "accept[ ] all factual

allegations in the complaint as true, and draw[ ] all inferences in the

plaintiffs' favor." Id. "We will uphold an order of dismissal when it

appears beyond a doubt that the plaintiff could prove no set of facts that

would entitle him or her to relief." Id. "Dismissal can be based on the lack

of a cognizable legal theory or the absence of sufficient facts alleged under

a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696,

699 (9th Cir. 1990). Because appellants' legal theory, that the right to

foreclose under the note . was destroyed when the note was securitized, is

not a recognized legal theory in Nevada, see Edelstein v. Bank of N. IC

Mellon, 128 Nev. Adv. Op. No. 48, 286 P.3d 249, 256-60 (2012) (discussing

securitization), we conclude that the district court did not err when it

dismissed appellants' complaint.

Turning to appellants' contention that they should be allowed

leave to amend their complaint, while leave to amend should be "freely

given when justice so requires," NRCP 15(a), "leave to amend should not

be granted if the proposed amendment would be futile . . [, and]

plead[ing] an impermissible claim" is futile. Halcrou), Inc. v. Eighth

Judicial Dist. Court, 129 Nev. Adv. Op. No. 42, 302 P.3d 1148, 1152

(2013). As we have explained, appellants have not set forth a cognizable

SUPREME COURT OF NEVADA 2 (0) 1947A 411•919 legal theory and thus it is irrelevant against whom they assert that

theory. Accordingly, we conclude that the district court did not err in

refusing to allow appellants to amend their complaint, and we

ORDER the judgment of the district court AFFIRMED.'

J. Parraguirre

NAL Douglas Cherry

cc: Hon. Lynne K. Simons, District Judge Debbie Leonard, Settlement Judge Terry J. Thomas Brooks Hubley LLP Washoe District Court Clerk

'We have considered appellants' other arguments and conclude that they lack merit.

SUPREME COURT OF NEVADA 3 (0) 1947A c(1100»