Taddeo v. American
Filing
839
ORDER Granting 792 Motion for Order Releasing Lis Pendens. Signed by Judge Kent J. Dawson on 9/7/2011. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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FRANK TADDEO, et al.,
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Plaintiffs,
Case No. 2:08-CV-01463-KJD-RJJ
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v.
ORDER
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AMERICAN INVSCO REALTY, et al.,
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Defendants.
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Before the Court is the Motion of Wells Fargo Bank, N.A. for Order Releasing Lis Pendens
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(#792). The above named Plaintiffs have filed an opposition (#797) to which Wells Fargo filed a
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reply (#799).
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I. Background
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This Court dismissed Plaintiffs’ claims against Wells Fargo on September 20, 2010 (#693).
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Wells Fargo had been named as “non-preferred lender” in Plaintiffs’ Second Amended Complaint
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not on the basis of any wrongdoing, but because they allegedly held an interest in Plaintiffs’ loans.
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In its Order dismissing Wells Fargo, the Court found that Plaintiffs “have alleged no facts that could
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demonstrate the subject deeds of trust at issue are, or will be, rendered invalid” and that “because
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Plaintiffs have failed to sufficiently allege fraud by any non-preferred lenders, the Court finds that
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rescission is not a viable remedy.” (#693 at 6.) In dismissing Wells Fargo and the other non21
preferred lenders, the Court also found that “Plaintiffs may receive complete relief and be able to
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proceed on their remaining claims against [the] remaining ... parties without title to the real
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property.” (Id.)
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Wells Fargo now moves for an order releasing the lis pendens recorded against the real
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property at issue in this litigation.
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II. Analysis
A lis pendens is a “notice recorded in the chain of title to real property, required or permitted
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in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and
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that any interests acquired during the pendency of the suit are subject to its outcome.” Black’s Law
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Dictionary 942–43 (7th ed. 1999). Nevada Revised Statutes Section 14.010 permits a claimant in an
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action for the “foreclosure of a mortgage upon real property, or affecting the title or possession of
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real property” to record a notice of pendency of action.
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Wells Fargo argues that the lis pendens should be removed because Plaintiffs do not meet the
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requirements of Section 14.010 since the action does not affect title or possession of the real
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property. Plaintiffs argue that if they are successful, they will seek rescission of the purchase
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transaction, which would convey title back to Defendants and therefore affect title. However, the
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Court has already ruled that rescission is not a viable remedy. (#693.) Plaintiffs have not
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demonstrated that rescission would be possible because rescission requires returning all parties to
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their original positions. Defendant cannot show See Bergstrom v. Estate of DeVoe, 854 P.2d 860,
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861 (Nev. 1993) (explaining that rescission seeks to place the parties in the position they occupied
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before signing the contract).
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The party seeking the les pendens must show:
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(1) the action affects title to or possession of property;
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(2) the action was not brought in bad faith or for an improper motive;
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(3) Plaintiffs will be able to perform any conditions precedent to the relief sought;
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(4) Plaintiffs would be injured if the property is transferred before this action concludes;
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and either
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(a) Plaintiffs are likely to prevail; or
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(b) Plaintiffs have a fair chance of success, and the hardship caused by a transfer of the
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property would be greater than the hardship to the defendant.
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See NGA #2 Ltd. Liability Co. v. Rains, 113 Nev. 1151, 1163 (Nev.,1997); N.R.S. 14.015(2).
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Plaintiffs have not met their burden under the third part of this test, nor have they made a
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showing that they are likely to prevail on the merits of their rescission claim, or that they have a fair
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chance of success, and the hardship caused by the transfer of the property would be greater than the
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hardship to the defendant. Here, the available remedy is damages. Accordingly, the lis pendens are
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expunged.
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III. Conclusion
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IT IS HEREBY ORDERED that the Motion of Wells Fargo Bank, N.A. for Order
Releasing Lis Pendens (#792) is GRANTED.
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IT IS FURTHER ORDERED that the Lis Pendens recorded by Plaintiffs against the real
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property identified as APNs 162-16-810-002 through 162-16-810-684 are hereby lifted, cancelled,
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expunged, and RELEASED IN FULL. This cancellation has the same effect as an expungement of
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the original notices.
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IT IS FURTHER ORDERED that Plaintiffs shall record a copy of this Order with the Clark
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County Recorder’s Office for each APN against which Plaintiffs have filed a Lis Pendens in
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connection with this action within fifteen (15) days of the date of this Order; if Plaintiffs fail to
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record a copy of this Order, any other person may record a copy of this Order with the Clark County
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Recorder’s Office for any APN against which Plaintiffs have filed a Lis Pendens in connection with
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this action.
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DATED this 7th day of September 2011.
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_____________________________
Kent J. Dawson
United States District Judge
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