Feldman-Snyder v. Lehman Brothers Holdings, Inc. et al

Filing 36

ORDER Granting 25 Motion to Intervene. Signed by Magistrate Judge Cam Ferenbach on 5/22/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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NORMA M. FELDMAN-SNYDER,

2:13-cv-00445-MMD-VCF

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Plaintiff,

ORDER

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vs.
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LEHMAN BROTHERS HOLDINGS, INC., and
BANK OF AMERICA (La Salle Bank National
Association),
Defendants,

(Motion to Intervene #25)

U.S. BANK NATIONAL ASSOCIATION,
SUCCESSOR-IN-INTEREST TO BANK OF
AMERICA, N.A., SUCCESSOR BY MERGER
TO LA SALLE BANK NATIONAL
ASSOCIATION, AS TRUSTEE FOR
STRUCTURED ASSET INVESTMENT LOAN
TRUST, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2004-8,

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Proposed Intervenor-Defendant.
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Before the court is U.S. Bank National Association, successor-in-interest to Bank of America,
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N.A., successor by merger to La Salle Bank National Association, as Trustee for Structured Asset
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Investment Loan Trust, mortgage pass-through certificates, series 2004-8's (hereinafter “U.S. Bank”)
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Motion to Intervene. (#25). No opposition was filed.
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I. Motion to Intervene
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A.

Background

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On March 15, 2013, Plaintiff Feldman-Snyder filed her complaint in the Eight Judicial District
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Court, Clark County, Nevada. (#1-1 Exhibit A). Plaintiff alleges in her complaint that defendants
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Lehman Brothers Holdings Inc. (hereinafter “Lehman Brothers”), and Bank of America, N.A., successor
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by merger to La Salle Bank National Association (hereinafter “Bank of America”) misrepresented
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ownership of their mortgage loan with Plaintiff and violated the pooling and servicing agreement that
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governed the securitized “Option One Deed of Trust.” (#6). Plaintiff seeks $250,000 in damages and
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injunctive relief. (#1-1). On March 15, 2013, Defendants removed the action to this court based on
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diversity, pursuant to 28 U.S.C. § 1332. (#1).
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On March 21, 2013, defendant Bank of America filed a motion to dismiss (#6) and a motion to
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set aside default (#7), with responses due by April 7, 2013. Id. On March 22, 2013, defendant Lehman
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Brothers filed a motion to dismiss (#10) and a motion to set aside default (#11), with responses due by
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April 8, 2013. Id. On April 8, 2013, U.S. Bank filed a motion to dismiss (#17)1. Plaintiff did not file

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timely responses to Defendants’ motions (#6, #7, #10, and #11).
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On April 10, 2013, defendant Lehman Brothers filed a notice of non-opposition regarding its
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motion to dismiss (#19), and a notice of non-opposition regarding its motion to set aside default (#20).
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On the same day, defendant Bank of America filed a notice of non-opposition regarding its motion to set
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aside default (#21) and a notice of non-opposition regarding its motion to dismiss (#22), and Plaintiff
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filed a late response to defendant Bank of America’s motion to dismiss (#23). On April 16, 2013,
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defendants Lehman Brothers and Bank of America filed a joint reply in support of Bank of America’s
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motion to dismiss (#6) and motion to set aside default (#7). (#24).
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At the time when U.S. Bank filed its motion to dismiss (#17), it was not a party to this action.
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On April 17, 2013, U.S. Bank filed the instant motion to intervene. (#25). Any response to the
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motion to intervene was due by May 4, 2013. Id. No response was filed. On April 24, 2013, Plaintiff
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filed a response to U.S. Bank’s motion to dismiss (#17). (#29). On April 30, 2013, Plaintiff filed a
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notice of lis pendens. (#30). On May 3, 2013, U.S. Bank filed a reply in support of its motion to
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dismiss. (#32).
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B.

Relevant Law

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Pursuant to Rule 24(a) of the Federal Rules of Civil Procedure, “[o]n timely motion, the court
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must permit anyone to intervene who. . . claims an interest relating to the property or transaction that is
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the subject of the action, and is so situated that disposing of the action may as a practical matter impair
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or impede the movant's ability to protect its interest, unless existing parties adequately represent that
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interest.” FED. R. CIV. P. 24. The advisory notes to the 1966 amendment further explain that “where an
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action is being prosecuted or defended by a trustee, a beneficiary of the trust should have a right to
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intervene if he can show that the trustee's representation of his interest probably is inadequate.” Id.
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When evaluating whether a party may intervene as of right under Rule 24(a), this court applies a
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four-part test: “(1) the application for intervention must be timely; (2) the applicant must have a
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“significantly protectable” interest relating to the property or transaction that is the subject of the action;
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(3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair
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or impede the applicant's ability to protect that interest; and (4) the applicant's interest must not be
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adequately represented by the existing parties in the lawsuit.” Sw. Ctr. for Biological Diversity v. Berg,
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268 F.3d 810, 817 (9th Cir. 2001); Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 836 (1996). Rule
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24(a) is generally construed liberally in favor of potential intervenors. 268 F.3d at 818.
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C.

Argument

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U.S. Bank asserts in its motion that the court should grant the intervention because it has
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satisfied the requirements of the four-part test by showing that (1) it has submitted a timely motion to

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intervene; (2) it possesses a “significantly protectable” interest relating to the property at issue; (3) a
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decision on the action may impede its ability to protect that interest; and (4) the existing parties may not
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adequately represent its interest. (#25).
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U.S. Bank stresses that there is no bright-line rule as to when a motion to intervene may be
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made, and that the court should weigh any prejudice to the parties against the necessity of the intervenor
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to join in the action. Id. In support of its argument, U.S. Bank inadvertently states that it had submitted
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its motion to intervene “less than one week” after March 15, 2013; however, the motion was actually
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filed on April 17, 2013. Id. In this instance, because U.S. Bank states that Defendants have already
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conferred with it and do not object to the intervention, id., the inconsistency regarding filing dates will
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not affect how this court evaluates the timeliness of the motion.
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U.S. Bank asserts that Defendants transferred their interest in the “Subject Deed” to it, thereby
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making U.S. Bank the current beneficiary to the property interest that is central to Plaintiff’s complaint.
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Id. U.S. Bank argues that this interest is what entitles it to intervene, because it is “the only party that
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maintains a current stake in the outcome of these proceedings” and would be impaired from protecting
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its rights in that interest if it was not allowed to participate in the action. Id.
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U.S. Bank also claims that the interest in the action “lies alone with U.S. Bank,” and that it “has
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its own interests independent of the named Defendants.”

Id.

U.S. Bank states that, in light of

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Defendants’ interests being transferred to it, “the named Defendants do not appear to be proper parties
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to this action in any capacity” and cannot adequately represent U.S. Bank. Id.
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D.

Discussion

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Responses to this motion to intervene were due by May 4, 2013. (#25). No oppositions from
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either side were filed, and in fact, U.S. Bank represents to the court that Defendants do not oppose the
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motion. Id. Pursuant to the Local Rules of Practice for this court, “[t]he failure of an opposing party to
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file points and authorities in response to any motion shall constitute a consent to the granting of the

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motion.” Local Rule 7-2(d). U.S. Bank has made a reasonable showing to satisfy the four-part test for
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granting intervention as of right. See (#25); Berg, 268 F.3d at 817. “While an applicant seeking to
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intervene has the burden to show that these four elements are met, the requirements are broadly
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interpreted in favor of intervention.” Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d
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893, 897 (9th Cir. 2011). The court finds that no prejudice will result against the present parties by
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allowing U.S. Bank to intervene, and practical considerations dictate that, as the beneficiary to the
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property interest in this action, U.S. Bank has a need to be represented in a way that Defendants cannot
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adequately provide.
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Accordingly and for good cause shown,
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IT IS ORDERED that U.S. Bank National Association, successor-in-interest to Bank of
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America, N.A., successor by merger to La Salle Bank National Association, as Trustee for Structured
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Asset Investment Loan Trust, mortgage pass-through certificates, series 2004-8's Motion To Intervene
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(#25) is GRANTED2.

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DATED this 22nd day of May, 2013.
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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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Included in the conclusion of U.S. Bank’s motion to intervene was a request for the court to grant an attached motion to
dismiss. (#25). The court declines to address this request because it is not properly included in the motion to intervene.
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