First 100, LLC v. Wells Fargo Bank, N.A. et al

Filing 29

ORDER DENYING 18 Emergency MOTION for Temporary Restraining Order filed by First 100, LLC. Signed by Judge James C. Mahan on 4/30/13. (Copies have been distributed pursuant to the NEF - EDS)

Case 2:13-cv-00431-JCM-PAL Document 28 Filed 04/26/13 Page 1 of 3

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WRIGHT, FINLAY & ZAK, LLP
Chelsea A. Crowton, Esq.
Nevada BarNo. 11547
5532 South Fort Apache Road, Suite 110
Las Vegas, NV 89148
[phone]; Fax: [phone]
[e-mail]
Attorney for Defendant, Wells Fargo Bank, NA.

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UNITED STATES DISTRICT COURT
CLARJ( COUNTY, NEVADA

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FIRST 100, LLC, a Nevada Limited Liability
Company,
Plaintiff,

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vs.
WELLS FARGO BANK, N.A., a National
Association; MTC FINANCIAL INC. d/b/a
TRUSTEE CORPS, a Foreign corporation;
CITY OF LAS VEGAS, a Political Subdivision;
DOES I through X; and ROE
CORPORATIONS I through X, inclusive,

Case No.: 2:13-CV-00431-JCM-PAL

DEFENDANT, WELLS FARGO BANK,
N.A.'S, ORDER DENYING THE
PLAINTIFF'S EMERGENCY MOTION
FOR TEMPORARY RESTRAINING
ORDER

Defendants.

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The Defendant, Wells Fargo Bank, N.A. (hereinafter "Wells Fargo"), by and through its
attorney of record, Chelsea A. Crowton, Esq. of the Jaw firm of Wright, Finlay & Zak, LLP, and
the Plaintiff, First 100, LLC, by and through their attorney of record, Luis A. Ayon, Esq. of the
Jaw firm of Maier Gutierrez Ayon, having appeared on April19, 2013 for the hearing on the
Plaintiffs Emergency Motion for Temporary Restraining Order. The Court having heard
arguments from all parties in the case, the Court having reviewed the Emergency Motion for
Temporary Restraining Order and the Response to the Emergency Motion for Temporary
Restraining Order, and good cause appearing, hereby rules as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Plaintiffs

Emergency Motion for Temporary Restraining Order is denied.

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Case 2:13-cv-00431-JCM-PAL Document 28 Filed 04/26/13 Page 2 of 3

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IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that Nevada

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is a Race-Notice State and that based on the fact that Wells Fargo Bank, N.A. 's April 2006 Deed

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of Trust was recorded prior to the Notice of Delinquent Lien filed by the Homeowner's

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Association, Wells Fargo's April2006 Deed of Trust has priority over the Homeowner's

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Association Lien.

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IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that the

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Plaintiff has failed to state a likelihood of success on the merits of the underlying Complaint,

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based on the fact that the language in N.R.S. 116.3116(2)(c) does not extinguish a first, position

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Deed of Trust and that the language in N.R.S. 116.3116(2)(c) is solely a payment priority lien for

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nine (9) months of assessments, dues, and expenses owed to the Homeowner's Association.

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IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that the

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Plaintiff took title to the Property subject to Wells Fargo's April2006 Deed of Trust, which was

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executed by Jan Werner on April24, 2006 and recorded in the Clark County Recorder's Office

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as Book and Instrument umber 20060501-0004562.

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IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that under

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N.R.S. 116.3116(2)(b), Wells Fargo's April2006 Deed of Trust has priority in the chain of title

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for the Property located at 220 Newport Lane Unit #201, Las Vegas, Nevada 89107.

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IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that Wells

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Fargo's first, position Deed of Trust survived the foreclosure sale by Meadows Condominium

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Unit Owners Association.

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IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that due to

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the unlikelihood of success on the merits of the underlying Complaint and denial of the

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Emergency Motion for Temporary Restraining Order, the Defendant, Wells Fargo Bank, N.A.,

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can lawfully proceed with a foreclosure sale on the Property located at 220 Newport Lane Unit

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#201, Las Vegas, Nevada 89107.

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IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that the

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Plaintiff has a temporary, possessory interest in the Property, subject to Wells Fargo's 2006 Deed

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ofTrust.

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Case 2:13-cv-00431-JCM-PAL Document 28 Filed 04/26/13 Page 3 of 3

IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that the

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Plaintiff merely took as much interest in the Property as the Borrower, Jane Werner, possessed

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prior to the Homeowner's Association foreclosure sale, wherein Jan Werner's interest was

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subject to Wells Fargo's 2006 Deed of Trust.

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IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that the

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argument regarding N.R.S. 116.3116(2)(c) extinguishing Wells Fargo's 2006 Deed of Trust

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would be a violation of Wells Fargo's State and Federal due process rights.

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IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that the

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Lien created tmder N.R.S. 116.3116(2)(c) is junior to Wells Fargo's 2006 Deed of Trust and

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cannot legally extinguish Wells Fargo's first, priority Lien.

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IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that the

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Nevada Real Estate Division Advisory Opinion 13-01 is not binding law in Nevada and

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dismissed as irrelevant to the Plaintiffs situation.

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April 30, 2013.
DATED this _ _ day of April, 2013.

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U.S. DISTRICT COURT JUDGE
Respectfully Submitted:

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FINLA~:ZAK, LLP
1\0 I~WI\ ,AfA~ nn:_)

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Chelsea A. Crowton, Esq.
Nevada Bar No. 11547
5532 South Fort Apache Road, Suite II 0
Las Vegas, NV 89148
Attorney for Defendant,
Wells Fargo Bank, N.A.

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