Sandy v. Bank of America Corp. et al

Filing 36

ORDER Denying Without Prejudice 32 Motion to Expunge Lis Pendens. Signed by Judge James C. Mahan on 4/3/2015. (Copies have been distributed pursuant to the NEF - DC)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

BAYARDO RENO SANDY,

Case No. 2:14-CV-1100 JCM (CWH)

8
9
10

Plaintiff(s),

ORDER

v.
BANK OF AMERICA CORP., et al.,

11

Defendant(s).

12
13

Presently before the court is a motion to expunge lis pendens filed by defendants Mortgage

14

Electronic Registration Systems, Inc.; Select Portfolio Services, Inc.; and the Bank of New York

15

Mellon f/k/a the Bank of New York, as trustee (collectively “defendants”). (Doc. # 32). Pro se

16

plaintiff Bayardo Reno Sandy (hereinafter “plaintiff”) filed a response, (doc. # 34), and defendants

17

filed a reply, (doc. # 35).

18

This is a mortgage foreclosure related case. On August 11, 2006, plaintiff borrowed

19

$241,600 from defendant Countrywide Home Loans, Inc. (“Countrywide”), pursuant to a

20

promissory note and deed of trust against his property. Plaintiff failed to make certain required

21

payments, and defendants attempted to foreclose on plaintiff’s property. Plaintiff then filed a

22

complaint in the instant court, asserting claims including fraud, conspiracy, harassment, and quiet

23

title. (Doc. # 1).

24

On July 7, 2014, plaintiff filed two lis pendens on the instant property. (Docs. # 2, 3). On

25

October 20, 2014, defendants filed a motion to dismiss plaintiff’s complaint. (Doc. # 15). Plaintiff

26

filed a response, (doc. # 18), and defendants filed a reply, (doc. # 24). On December 16, 2014, the

27

court granted the motion to dismiss and directed the clerk to close the case. (Doc. # 25).

28
James C. Mahan
U.S. District Judge

On January 13, 2015, plaintiff filed a notice of appeal. (Doc. # 27). On January 27, 2015,

1
2

defendants filed the instant motion to expunge lis pendens. (Doc. # 32).

3

Defendants argue that the lis pendens at issue should be expunged because, as this court

4

held in its order granting dismissal, plaintiff failed to state any viable claims in his complaint.

5

(Doc. # 32). In response, plaintiff contends that it is inappropriate to expunge the lis pendens on

6

his property because his appeal is pending. (Doc. # 34).

7

Nevada Revised Statute 14.010(2) states that “[a] notice of an action affecting real

8

property, which is pending in any United States District Court for the District of Nevada may be

9

recorded and indexed in the same manner and in the same place as provided with respect to actions

10

pending in courts of this state.” NRS 14.010(2).

11

A party recording a notice must establish that he is likely to prevail in the action or that he

12

has a fair chance of success on the merits. NRS 14.015(3)(b). The court must order cancellation

13

of the lis pendens upon finding that the party who recorded it has failed to meet the requirements

14

set forth in that section. NRS 14.015.

15

However, where a case has been appealed, the district court is generally divested of

16

jurisdiction over any aspects of the case involved in the appeal. See Griggs v. Provident Consumer

17

Discount Co., 459 U.S. 56, 58 (1982); see also Habon v. Mortg. Elec. Reg. Sys., Inc., No. 3:10-cv-

18

191-RCJ-VPC, 2012 WL 5944892, at *3 (D. Nev. Nov. 26, 2012) (denying, without prejudice,

19

motion to expunge lis pendens in similar case for lack of jurisdiction).

20

Plaintiff has appealed the court’s order dismissing plaintiff’s complaint under Federal Rule

21

of Civil Procedure 12(b)(6). Plaintiff’s complaint includes claims for quiet title and declaratory

22

relief, which are now on appeal. Accordingly, the court finds that it lacks jurisdiction to grant

23

defendants’ motion to expunge lis pendens. The lis pendens at issue affect disputed property rights

24

that, while resolved by this court, have not been conclusively determined on appeal.

25

...

26

...

27

...

28

...

James C. Mahan
U.S. District Judge

-2-

1

Accordingly,

2

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to

3

expunge lis pendens, (doc. # 32), be, and the same hereby is, DENIED without prejudice for lack

4

of jurisdiction.

5

DATED April 3, 2015.

6
7

__________________________________________

8

UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-3-