Ferrell Street Trust et al v. Federal Home Loan Mortgage Corporation et al

Filing 22

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)

1
2
3
4
5
UNITED STATES DISTRICT COURT
6
DISTRICT OF NEVADA
7
FERRELL STREET TRUST, et al.,

8
9

2:12-CV-2028 JCM (VCF)

Plaintiff(s),

10

v.

11

FEDERAL HOME LOAN
MORTGAGE CORPORATION, et al.,

12
13

Defendant(s).

14
15

ORDER

16

Presently before the court is defendant/counter-claimant Federal Home Loan Mortgage

17

Corporation’s (“FHLMC”) motion to dismiss plaintiff/counter-defendant Alessi & Koenig, LLC

18

(“A&K”) without prejudice. (Doc. # 18). A&K filed a limited opposition and moved to interplead

19

funds. (Doc. # 20). FHLMC filed a reply. (Doc. # 21).

20

I.

Background

21

This case is a quiet title action. On November 21, 2006, defendant Patricia Leon obtained

22

title to real property located at 2794 Murray Hill Lane, Las Vegas, NV 89142 executing a deed of

23

trust (the “property”), which is in Sunrise Highlands Community Association (the “Sunrise

24

Highlands”). Over time, Leon became delinquent on her mortgage and homeowner’s association

25

payments. Based on the delinquent homeowner’s association payments, Sunrise Highlands retained

26

A&K, a homeowner’s association law firm, to foreclose on the property pursuant to NRS § 116.3116

27

et seq.

28
James C. Mahan
U.S. District Judge

1

On March 7, 2012, FHLMC, a government sponsored entity involved in the mortgage market,

2

held a foreclosure sale on the property under the deed of trust executed by Leon. Then on July 25,

3

2012, A&K foreclosed on a property on behalf of the homeowner’s association. A&K sold the

4

property at auction to plaintiff/counter-defendant Ferrell Street Trust (“Ferrell”). FHLMC’s

5

foreclosure was not recorded until July 26, 2012–one day after A&K foreclosed.

6

On September 27, 2012, plaintiffs A&K and Ferrell filed a complaint to quiet title on the

7

property, for declaratory relief, and to interplead funds. On November 27, 2012, FHLMC filed its

8

answer and counterclaim against Ferrell, A&K, and Leon. On January 10, 2013, Ferrell and A&K

9

filed their answer to FHLMC’s counter-claim.

10

Now before the court is FHLMC’s motion to dismiss counter-defendant A&K without

11

prejudice and A&K’s motion to interplead funds.

12

II.

13

Motions
A.

14

FHLMC’s motion to dismiss counter-defendant A&K without prejudice (doc.
# 18)

15

FHLMC seeks to dismiss counter-defendant A&K without prejudice pursuant to Fed. R. Civ.

16

P. 41(a)(2). A&K does not oppose this motion. Instead, A&K requests that it be dismissed with

17

prejudice.

18

The court construes FHLMC’s request for A&K’s dismissal and A&K’s non-opposition to

19

be dismissed from this action because it does not have any interest in the underlying dispute, as a

20

stipulation to dismiss A&K. Both parties have made unequivocal statements that they wish to have

21

A&K dismissed from this action. The only issue left for the court to resolve is whether dismissal

22

should be with or without prejudice.

23

Plaintiff requests that the dismissal be with prejudice but does not give any reason why

24

dismissal with prejudice is warranted. Here, the dismissal is not an adjudication on the

25

merits–therefore, the court finds dismissal without prejudice appropriate.

26

B.

27

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)

28
James C. Mahan
U.S. District Judge

-2-

1

After the homeowner’s association collected its money due and owing and after A&K was paid for

2

its services, the excess proceeds are $1,089.73.

3

A&K seeks to interplead these excess proceeds pursuant to Fed. R. Civ. P. 67(a). This rule

4

provides that a party seeking the disposition of a sum of money “on notice to every other party and

5

by leave of court–may deposit with the court all or part of the money or thing, whether or not that

6

party claims any of it. The depositing party must deliver to the clerk a copy of the order permitting

7

deposit.” FED. R. CIV. P. 67(a).

8

A&K requests a court order allowing it to deposit with the clerk of the court the excess

9

proceeds from the homeowners association foreclosure sale of $1,089.73. FHLMC does not oppose

10

A&K’s motion to interplead excess funds. The court finds that A&K has no interest in the excess

11

proceeds or the underlying dispute between Ferrell, the buyer at the homeowner’s association

12

auction, and FHLMC, the bank that previously foreclosed. The court grants A&K’s request.

13

III.

Conclusion

14

Accordingly,

15

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant/counter-

16

claimant Federal Home Loan Mortgage Corporation’s motion to dismiss plaintiff/counter-defendant

17

Alessi & Koenig, LLC without prejudice (doc. # 18) be, and the same hereby is, GRANTED.

18
19
20
21
22
23
24

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.

25
26
UNITED STATES DISTRICT JUDGE
27
28
James C. Mahan
U.S. District Judge

-3-