An action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can establish that at the time the power of sale was exercised or the foreclosure occurred, no breach of condition or failure of performance existed on the mortgagor’s or trustor’s part which would have authorized the foreclosure or exercise of the power of sale.
Collins v. Union Federal Sav. & Loan Ass’n, 99 Nev. 284, 662 P.2d 610, 623 (Nev.1983)
- Plaintiff must affirmatively plead that he is not in breach
Plaintiffs’ claim for wrongful foreclosure falls short because they have failed to allege that they were not in default on their loan obligations when Defendant initiated the foreclosureproceedings. Although Plaintiffs claim that Defendants’ actions were fraudulent, malicious, and oppressive, Plaintiffs do not affirmatively allege that they breached no condition of the mortgage agreement sufficient to permit foreclosure proceedings against them. Thus, the Court dismisses Plaintiffs’ claim for wrongful foreclosure.
Larson v. Homecoming Financial, LLC, 680 F.Supp.2d 1230, 1237 (D. Nev. 2009).