BAC Home Loans Servicing LP v. Stonefield II Homeowners Association et al
Filing
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ORDER Granting 56 Motion to Dismiss. The case is DISMISSED without prejudice. Signed by Judge James C. Mahan on 7/21/2011. (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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BAC HOME LOANS SERVICING, LP,
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2:11-CV-167 JCM (RJJ)
Plaintiff,
v.
STONEFIELD II HOMEOWNERS
ASSOCIATION, et al.,
Defendants.
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ORDER
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Presently before the court is defendants Southern Highlands Community Association and
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Alessi & Koenig, LLC’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
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under Nevada Revised Statute § 38.310, or in the alternative, motion to compel arbitration. (Doc.
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#56). Defendants Canyon Crest Association and Las Brisas Homeowners Association filed limited
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joinders to the motion. (Doc. #68 and #104). Plaintiff BAC Home Loan Servicing, LP filed an
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opposition. (Doc. #118). Defendants Southern Highlands Community Association and Alessi &
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Koenig, LLC, filed a reply in support of the motion. (Doc. #120).
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Plaintiff BAC Home Loan filed its complaint on January 31, 2011, requesting declaratory
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and injunctive relief. (Doc. #1). According to the complaint, BAC Home Loan services thousands
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of mortgage loans in Nevada on behalf of many holders of first deeds of trust, or “first security
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interests” for purposes of NRS § 116.3116. Id. It asserts that many of the properties it services are
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subject to the liens of homeowners’ associations. Id. Such liens arise when the homeowners’
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James C. Mahan
U.S. District Judge
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associations’ fees go unpaid by the homeowner. Id. Pursuant to NRS § 116.3116, the associations
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may impose a lien for “any penalties, fees, charges, late charges, fines and interest charged.” NRS
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§ 116.3116(1)(j)-(n). BAC Home Loan contends that the associations’ liens become senior to it only
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“to the extent of the assessments for common expenses based on the periodic budget adopted by the
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association pursuant to NRS 116.3116 which would have become due in the absence of acceleration
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during the 9 months immediately preceding institution of an action to enforce the lien.” Id.
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BAC Home Loan contends that if the amount owed for association assessment fees is not
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paid before the foreclosure sale, it tenders payments to the associations to “clear the cloud” on the
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title. Here, it asserts that it attempted to tender the amounts owed, but that “[s]everal trustees of
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homeowners’ associations, including the trustee [d]efendants, have wrongfully rejected [its] tender.”
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It asks the court to declare that (1) it has the right to pay-off or redeem an association’s super-priority
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lien, and (2) that only budgeted common assessments, but not attorneys’ fees or collections costs,
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are included within the super-priority lien amount under NRS 11.3116. Further, plaintiff asks this
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court for an injunction forcing the defendants to accept payment for only the super-priority amount,
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excluding any additional fees or costs.
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Motion To Dismiss
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In the present motion to dismiss (doc. #56), defendants contend that this court lacks subject
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matter jurisdiction because this action should be submitted to arbitration pursuant to NRS 38.320.
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Under that section of the Nevada Revised Statute, “[a]ny civil action described in NRS
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38.310 must be submitted for mediation or arbitration by filing a written claim with the [d]ivision.”
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Section 38.310 provides that “[n]o civil action based upon a claim relating to:...(b) [t]he procedures
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used for increasing, decreasing or imposing additional assessments upon residential property, may
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be commenced in any court in this [s]tate unless the action has been submitted to meditation or
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arbitration pursuant to the provisions of NRS 38.300 to 38.360, inclusive, and, if the civil action
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concerns real estate within a planned community subject to provisions of chapter 116 of NRS...”
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NRS § 38.310(1)(b). Additionally, subsection 2 of that same statute states that the “court shall
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dismiss any civil action which is commenced in violation of the provisions of subsection 1.” NRS
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James C. Mahan
U.S. District Judge
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§ 38.310(2).
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According to the definitions provided in NRS 38.300(1), “assessments” means “(a) [a]ny
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charge which an association may impose against an owner of residential property pursuant to a
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declaration of covenants, conditions and restrictions, including any late charges, interest and costs
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of collecting the charges; and (b) [a]ny penalties, fines, fees and other charges which may be
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imposed by an association...” Further, in section (3), “civil action” is defined as including “an action
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for money damages or equitable relief...,” but excluding “an action in equity for injunctive relief in
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which there is an immediate threat of irreparable harm, or an action relating to the title to residential
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property.” NRS § 38.300(3).
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Here, as discussed above, the case stems from the plaintiff attempting to pay-off the
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association “assessment” fees owed to the association prior to the foreclosure sale. However,
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defendants have refused to accept tender, because they allege that they are entitled to “additional
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assessments” in the form of attorney’s “fees” and the “costs of collecting” the association fees.
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Defendants contend that this action fits squarely within the definitions provided in NRS 38.300(1)(a)
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and (b) and (2) and § 38.310(1)(b), warranting dismissal. In the alternative, defendants suggest that
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the court should stay the proceedings and compel arbitration.
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Plaintiff BAC Home Loan argues in its opposition (doc. #118), that arbitration is not required
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and defendants are interpreting the statutes incorrectly. Specifically, plaintiff asserts that (1) Ҥ
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38.300(3)’s definition of a “civil action,” as that term is used in [NRS] § 38.310, includes a claim
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for monetary damages or equitable relief; the definition excludes claims for declaratory relief,” and
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(2) “[NRS] § 38.310's legislative history shows that Nevada’s legislature never intended to compel
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a senior lien holder like BAC to arbitrate a dispute concerning the statutory interpretation of the
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Uniform Common Interest Ownership Act,” but was intended “to compel community residents and
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the board to resolve their disputes through arbitration or mediation.”
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BAC Home Loan interprets NRS 38.300(3), the definition of “civil action,” as excluding
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actions for declaratory relief, such as this, simply because declaratory relief is not specifically listed
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in the definition. Further, it argues that a request for the remedy of injunctive relief, such as that
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James C. Mahan
U.S. District Judge
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sought here, is not encompassed in the definition either. To rebut this, defendants contend that the
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statute specifically set out what actions, i.e. injunctive relief with irreparable injury or those relating
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to the title of the property, were excluded, and did not list declaratory relief. Defendants argue that
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had it been the intention of the statute to exclude declaratory relief actions, it would have clearly
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been listed.
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Plaintiff BAC Home Loan asserts that if the court finds the language of the statute is unclear
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or ambiguous, the legislative history demonstrates the intention of the statute was to settle disputes
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between homeowners and associations through arbitration and mediation. The court, however, need
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not look at the legislative history or read into the intent of the drafters, the statutes are clear.
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The relevant statutes demonstrate that (1) “claims relating to” “increasing, decreasing or
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imposing additional assessments upon residential property” must be submitted to arbitration first,
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(2) “costs of collecting the charges” and “[a]ny penalties, fines, fees and other charges which may
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be imposed by an association...” are within the definition of “assessment,” and (3) civil actions for
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“monetary damages or equitable relief” must be dismissed. NRS § 38.320(1), § 38.310(1)(b) and
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(2), and § 38.300(1)(a) and (b) and (3). As the complaint here arises from the defendants’ increasing
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the amount of the assessments due to attorneys’ fees and the costs in collecting the fees, the plaintiff
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was required to submit the claim to arbitration or mediation first. Id. Therefore, the court is inclined
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to dismiss the action without prejudice to allow the plaintiff to submit its claims to arbitration or
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mediation.
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Accordingly,
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IT IS HEREBY ORDERED ADJUDGED AND DECREED that defendants Southern
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Highlands Community Association and Alessi & Koenig, LLC’s motion to dismiss pursuant to
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Federal Rule of Civil Procedure 12(b)(1) under Nevada Revised Statute § 38.310, or in the
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alternative, motion to compel arbitration (doc. #56) be, and the same hereby is, GRANTED.
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...
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...
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...
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James C. Mahan
U.S. District Judge
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IT IS THEREFORE ORDERED that the case of BAC Home Loans Servicing LP v. Stonefield
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II Homeowners Association et al (Case No. 2:11-cv-00167-JCM -RJJ) be, and the same hereby is,
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DISMISSED without prejudice.
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DATED July 21, 2011.
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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge
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