Ferrell Street Trust et al v. Federal Home Loan Mortgage Corporation et al
Filing
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ORDER that 18 Motion to Dismiss Plaintiff/Counter-Defendant Alessi & Koenig, LLC without prejudice is GRANTED. A&K will be dismissed from this action without prejudice following A&K's deposit of the interpleaded funds. FURTHER ORDERED that A &K's MOTION to Interplead Funds (contained within 20 Response to Motion) is GRANTED. ORDERED that A&K deposit $1,089.73 with the clerk of the court within 14 days of entry of this order. Signed by Judge James C. Mahan on 8/6/13. (Copies have been distributed pursuant to the NEF: cc Finance - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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FERRELL STREET TRUST, et al.,
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2:12-CV-2028 JCM (VCF)
Plaintiff(s),
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v.
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FEDERAL HOME LOAN
MORTGAGE CORPORATION, et al.,
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Defendant(s).
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ORDER
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Presently before the court is defendant/counter-claimant Federal Home Loan Mortgage
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Corporation’s (“FHLMC”) motion to dismiss plaintiff/counter-defendant Alessi & Koenig, LLC
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(“A&K”) without prejudice. (Doc. # 18). A&K filed a limited opposition and moved to interplead
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funds. (Doc. # 20). FHLMC filed a reply. (Doc. # 21).
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I.
Background
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This case is a quiet title action. On November 21, 2006, defendant Patricia Leon obtained
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title to real property located at 2794 Murray Hill Lane, Las Vegas, NV 89142 executing a deed of
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trust (the “property”), which is in Sunrise Highlands Community Association (the “Sunrise
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Highlands”). Over time, Leon became delinquent on her mortgage and homeowner’s association
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payments. Based on the delinquent homeowner’s association payments, Sunrise Highlands retained
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A&K, a homeowner’s association law firm, to foreclose on the property pursuant to NRS § 116.3116
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et seq.
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James C. Mahan
U.S. District Judge
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On March 7, 2012, FHLMC, a government sponsored entity involved in the mortgage market,
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held a foreclosure sale on the property under the deed of trust executed by Leon. Then on July 25,
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2012, A&K foreclosed on a property on behalf of the homeowner’s association. A&K sold the
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property at auction to plaintiff/counter-defendant Ferrell Street Trust (“Ferrell”). FHLMC’s
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foreclosure was not recorded until July 26, 2012–one day after A&K foreclosed.
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On September 27, 2012, plaintiffs A&K and Ferrell filed a complaint to quiet title on the
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property, for declaratory relief, and to interplead funds. On November 27, 2012, FHLMC filed its
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answer and counterclaim against Ferrell, A&K, and Leon. On January 10, 2013, Ferrell and A&K
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filed their answer to FHLMC’s counter-claim.
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Now before the court is FHLMC’s motion to dismiss counter-defendant A&K without
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prejudice and A&K’s motion to interplead funds.
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II.
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Motions
A.
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FHLMC’s motion to dismiss counter-defendant A&K without prejudice (doc.
# 18)
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FHLMC seeks to dismiss counter-defendant A&K without prejudice pursuant to Fed. R. Civ.
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P. 41(a)(2). A&K does not oppose this motion. Instead, A&K requests that it be dismissed with
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prejudice.
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The court construes FHLMC’s request for A&K’s dismissal and A&K’s non-opposition to
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be dismissed from this action because it does not have any interest in the underlying dispute, as a
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stipulation to dismiss A&K. Both parties have made unequivocal statements that they wish to have
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A&K dismissed from this action. The only issue left for the court to resolve is whether dismissal
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should be with or without prejudice.
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Plaintiff requests that the dismissal be with prejudice but does not give any reason why
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dismissal with prejudice is warranted. Here, the dismissal is not an adjudication on the
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merits–therefore, the court finds dismissal without prejudice appropriate.
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B.
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A&K foreclosed on the property on behalf of the homeowners association for $7,050.00.
A&K’s motion to interplead funds (doc. # 20)
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James C. Mahan
U.S. District Judge
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After the homeowner’s association collected its money due and owing and after A&K was paid for
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its services, the excess proceeds are $1,089.73.
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A&K seeks to interplead these excess proceeds pursuant to Fed. R. Civ. P. 67(a). This rule
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provides that a party seeking the disposition of a sum of money “on notice to every other party and
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by leave of court–may deposit with the court all or part of the money or thing, whether or not that
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party claims any of it. The depositing party must deliver to the clerk a copy of the order permitting
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deposit.” FED. R. CIV. P. 67(a).
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A&K requests a court order allowing it to deposit with the clerk of the court the excess
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proceeds from the homeowners association foreclosure sale of $1,089.73. FHLMC does not oppose
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A&K’s motion to interplead excess funds. The court finds that A&K has no interest in the excess
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proceeds or the underlying dispute between Ferrell, the buyer at the homeowner’s association
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auction, and FHLMC, the bank that previously foreclosed. The court grants A&K’s request.
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III.
Conclusion
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Accordingly,
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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant/counter-
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claimant Federal Home Loan Mortgage Corporation’s motion to dismiss plaintiff/counter-defendant
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Alessi & Koenig, LLC without prejudice (doc. # 18) be, and the same hereby is, GRANTED.
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IT I THEREFORE ORDERED that A&K will be dismissed from this action without
prejudice following A&K’s deposit of the interpleaded funds.
IT IS FURTHER ORDERED that A&K’s motion to interplead funds (doc. # 20) be, and the
same hereby is, GRANTED.
IT IS THEREFORE ORDERED that A&K deposit $1,089.73 deposit with the clerk of the
court within 14 days of entry of this court’s order.
DATED August 6, 2013.
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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge
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