LN Management LLC Series 2543 Citrus Garden v. Gelgotas et al
Filing
19
ORDER granting 15 Stipulation to Entry of Order. Signed by Judge Miranda M. Du on 2/17/2015. (Copies have been distributed pursuant to the NEF - DC)
Case 2:15-cv-00112-MMD-CWH Document 15 Filed 02/13/15 Page 1 of 3
1
2
3
4
5
6
7
8
9
10
11
Leslie Bryan Hart, Esq. (SBN 4932)
John D. Tennert, Esq. (SBN 11728)
FENNEMORE CRAIG, P.C.
300 E. Second St., Suite 1510
Reno, Nevada 89501
Tel: 775-788-2228 Fax: 775-788-2229
lhart@fclaw.com; jtennert@fclaw.com
(Pro Hac Vice to be submitted)
Asim Varma, Esq.
Howard N. Cayne, Esq.
Michael A.F. Johnson, Esq.
ARNOLD & PORTER LLP
555 12th Street NW
Washington, DC 20004
Tel: (202) 942-5000 Fax: (202) 942-5999
Asim.Varma@aporter.com; hcayne@aporter.com; Michael.Johnson@aporter.com;
Attorneys for Proposed Intervenor Federal Housing Finance Agency
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
LN MANAGEMENT LLC SERIES 2543
CITRUS GARDEN,
Plaintiff,
v.
MARCELLE GELGOTAS, an individual;
MICHELLE ROCK, an individual; MARK
ROCK, an individual; FEDERAL NATIONAL
MORTGAGE ASSOCIATION; CITRUS
GARDENS HOMEOWNERS
ASSOCIATION, a Nevada Non-Profit
Corporation; DOES 1 through 10, inclusive,
Defendants.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Counterclaimant,
v.
LN MANAGEMENT LLC SERIES 2543
CITRUS GARDEN, a Nevada LLC; GREEN
VALLEY RANCH COMMUNITY
ASSOCIATION, INC., a Nevada non-profit
corporation; DOES 1 through 10, inclusive;
ROES Business Entities 1 through 10,
inclusive,
Counter-Defendants.
CASE NO. 2:15-cv-00112-MMD-CWH
STIPULATION TO ENTRY OF ORDER
AND PROPOSED ORDER PERMITTING
FEDERAL HOUSING FINANCE
AGENCY TO INTERVENE AS
CONSERVATOR OF THE FEDERAL
NATIONAL MORTGAGE ASSOCIATION
Case 2:15-cv-00112-MMD-CWH Document 15 Filed 02/13/15 Page 2 of 3
1
1.
The Federal Housing Finance Agency (“FHFA” or “Conservator”), as
2
Conservator for Defendant Federal National Mortgage Association (“Fannie Mae”), seeks to
3
intervene in the above-captioned action pursuant to 12 U.S.C. § 4617(b)(2)(A)(i) and Fed. R.
4
Civ. P. 24.
5
2.
On September 6, 2008, FHFA’s Director appointed the FHFA Conservator of
6
Fannie Mae and the Federal Home Loan Mortgage Corporation in accordance with the Housing
7
and Economic Recovery Act of 2008, Pub. L. 110-289, 122 Stat. 2654 (codified at 12 U.S.C.
8
§ 4617) (“HERA”), and the Federal Housing Enterprises Financial Safety and Soundness Act of
9
1992 (12 U.S.C. § 4501, et. seq.).
10
3.
The FHFA, as Conservator, has succeeded to “all rights, titles, powers, and
11
privileges” of Fannie Mae, including its right to sue and be sued in the federal courts. See
12
12 U.S.C. § 4617(b)(2)(A)(i).
13
4.
Accordingly, FHFA has an unconditional federal statutory right to intervene in
14
this matter, see Fed. R. Civ. P. 24(a)(1), and to assert its interests in a manner consistent with the
15
Conservator’s powers and duties.
16
17
5.
Pursuant to Fed. R. Civ. P. 24(c), FHFA attaches as Exhibit A its intended
Answer.
18
STIPULATION
19
FHFA and Plaintiff LN Management LLC Series 2543 Citrus Garden, through their
20
attorneys of record, hereby stipulate and request that the Court make this stipulation an order of
21
the Court:
22
23
///
24
///
25
///
26
///
27
///
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
2
Case 2:15-cv-00112-MMD-CWH Document 15 Filed 02/13/15 Page 3 of 3
1
2
3
The FHFA shall be permitted to intervene in the above-referenced action pursuant to 12
U.S.C. § 4617(b)(2)(A)(i) and Fed. R. Civ. P. 24.
DATED this 13th day of February, 2015.
4
5
6
7
8
9
By: /s/ Kerry Faughman
FENNEMORE CRAIG, P.C.
Kerry Faughman, Esq.
By:
/s/ Leslie Bryan Hart
Nevada Bar No. 12204
P.O.Box 335361
Leslie Bryan Hart, Esq. (SBN 4932)
North Las Vegas, NV 89086
John D. Tennert, Esq. (SBN 11728)
Tel. 702-301-3096
300 E. Second St., Suite 1510
Fax. 702-331-4222
Reno, Nevada 89501
Attorneys for Plaintiff LN Management LLC
Tel: 775-788-2228 Fax: 775-788-2229
Series 2543 Citrus Garden
lhart@fclaw.com; jtennert@fclaw.com
10
11
12
13
14
15
16
and
By: /s/ Colt B. Dodrill
Colt B. Dodrill, Esq.
Nevada Bar No. 9000
WOLFE & WYMAN LLP
980 Kelly Johnson Drive, Ste 140
Las Vegas, Nevada 89119
Tel: (702) 476-0100
Fax: (702) 476-0101
cbdodrill@wolfewyman.com
Attorneys for Federal National Mortgage
Association
(Pro Hac Vice to be submitted)
ARNOLD & PORTER LLP
Asim Varma, Esq.
Howard N. Cayne, Esq.
Michael A.F. Johnson, Esq.
555 12th Street NW
Washington, DC 20004
Tel:(202) 942-5000Fax: (202)942-5999
Asim.Varma@aporter.com;
hcayne@aporter.com;
Michael.Johnson@aporter.com;
17
Attorneys for Proposed Intervenor Federal
Housing Financing Agency
18
19
20
ORDER
IT IS SO ORDERED.
21
22
_______________________________________
UNITED STATES DISTRICT COURT JUDGE
23
February 17, 2018
DATED: ______________________________
24
25
10061370.1/038236.0001
26
27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
3
Case 2:15-cv-00112-MMD-CWH Document 15-1 Filed 02/13/15 Page 1 of 10
Exhibit A
Exhibit A
Case 2:15-cv-00112-MMD-CWH Document 15-1 Filed 02/13/15 Page 2 of 10
1
2
3
4
5
6
7
8
9
10
Leslie Bryan Hart, Esq. (SBN 4932)
John D. Tennert, Esq. (SBN 11728)
FENNEMORE CRAIG, P.C.
300 E. Second St., Suite 1510
Reno, Nevada 89501
Tel: 775-788-2228 Fax: 775-788-2229
lhart@fclaw.com; jtennert@fclaw.com
(Pro Hac Vice to be submitted)
Asim Varma, Esq.
Howard N. Cayne, Esq.
Michael A.F. Johnson, Esq.
ARNOLD & PORTER LLP
555 12th Street NW
Washington, DC 20004
Tel: (202) 942-5000 Fax: (202) 942-5999
Asim.Varma@aporter.com; hcayne@aporter.com; Michael.Johnson@aporter.com;
Attorneys for Proposed Intervenor Federal Housing Finance Agency
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
11
12
13
14
15
16
17
18
19
20
LN MANAGEMENT LLC SERIES 2543
CITRUS GARDEN
Plaintiff,
vs.
MARCELLE GELGOTAS; MICHELLE
ROCK; MARK ROCK; FEDERAL
NATIONAL MORTGAGE ASSOCIATION;
CITRUS GARDENS HOMEOWNERS
ASSOCIATION; and DOES 1 through 10,
inclusive,
Defendants.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Counterclaimant,
21
22
23
24
25
vs.
LN MANAGEMENT LLC SERIES 2543
CITRUS GARDEN; GREEN VALLEY
RANCH COMMUNITY ASSOCIATION,
INC.; DOES 1 through 10, inclusive; ROES
Business Entities 1 through 10, inclusive,
Counter-Defendants.
26
27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
10031111.1/038236.0001
CASE NO. 2:15-cv-00112-MMD-CWH
ANSWER AND COUNTERCLAIMS BY
PROPOSED INTERVENOR THE
FEDERAL HOUSING FINANCE
AGENCY AS CONSERVATOR FOR THE
FEDERAL NATIONAL MORTGAGE
ASSOCIATION
Case 2:15-cv-00112-MMD-CWH Document 15-1 Filed 02/13/15 Page 3 of 10
1
Simultaneously with this Answer, the Federal Housing Finance Agency (“FHFA”), in its
2
capacity as Conservator for the Federal National Mortgage Association (“Fannie Mae”), is filing,
3
along with the other parties to this action, a joint stipulation that FHFA be permitted to intervene
4
in this action pursuant to Federal Rule of Civil Procedure 24. In accordance with Rule 24(c)’s
5
6
requirement that a motion to intervene “be accompanied by a pleading that sets out the claim or
7
defense for which intervention is sought, FHFA submits this Answer to respond as follows to the
8
Complaint filed by Plaintiff LN Management LLC Series 2543 Citrus Garden (“Plaintiff”).
9
10
11
PARTIES, JURISDICTION AND VENUE
1.
FHFA admits the allegations of Paragraph 1 of the Complaint.
2.
FHFA is without knowledge as to the allegations of Paragraph 2 of the
12
Complaint, and on that basis denies them.
13
14
15
16
17
18
19
3.
FHFA is without knowledge as to the allegations of Paragraph 3 of the Complaint,
and on that basis denies them.
4.
FHFA is without knowledge as to the allegations of Paragraph 4 of the Complaint,
and on that basis denies them.
5.
FHFA is without knowledge as to the allegations of Paragraph 6 of the Complaint,
and on that basis denies them.
20
21
22
23
24
6.
FHFA denies the allegations of Paragraph 6 of the Complaint.
7.
FHFA admits the allegations of Paragraph 7 of the Complaint.
8.
FHFA is without knowledge as to the allegations of Paragraph 8 of the Complaint,
and on that basis denies them.
25
26
GENERAL ALLEGATIONS
9.
The allegations of Paragraph 7 of the Complaint constitute a conclusion of law as
27
to which no response is required. To the extent a response is required, FHFA denies them.
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
10031111.1/038236.0001
2
Case 2:15-cv-00112-MMD-CWH Document 15-1 Filed 02/13/15 Page 4 of 10
1
2
3
10.
In answering Paragraph 10 of the Complaint, FHFA admits only that the
referenced deed was recorded in the official records of the Clark County Recorder’s Office as
book and instrument number 201308210000280 and that the referenced deed speaks for itself.
4
FHFA denies the remainder of the allegations of Paragraph 10 of the Complaint.
5
11.
6
In answering Paragraph 11 of the Complaint, FHFA admits only that Defendant
7
Fannie Mae has had, and continues to have, an interest in the Property. FHFA specifically
8
denies that Fannie Mae’s interest in the Property was extinguished. FHFA is without knowledge
9
as the remainder of the allegations contained in Paragraph 11 of the Complaint and therefore
10
denies them.
11
12.
FHFA denies the allegations of Paragraph 12 of the Complaint.
13.
FHFA is without knowledge as to the allegations of Paragraph 13 of the
12
13
14
Complaint, and on that basis denies them.
FIRST CLAIM FOR RELIEF
(Quiet Title)
15
16
14.
FHFA repeats its responses to Paragraphs 1 through 13 above, as if fully stated
19
15.
FHFA denies the allegations of Paragraph 15 of the Complaint.
20
16.
FHFA denies the allegations of Paragraph 16 of the Complaint.
21
17.
FHFA denies the allegations of Paragraph 17 of the Complaint.
18.
In answering Paragraph 18 of the Complaint, FHFA admits only that Fannie
17
18
22
23
herein.
Mae’s lien was not extinguished. The remainder of the allegations of Paragraph 18 constitute a
24
25
26
conclusion of law to which no response is required. To the extent a response to the allegations is
required, FHFA denies them.
27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
10031111.1/038236.0001
3
Case 2:15-cv-00112-MMD-CWH Document 15-1 Filed 02/13/15 Page 5 of 10
1
SECOND CLAIM FOR RELIEF
(Declaratory Relief)
2
19.
FHFA repeats its responses to Paragraphs 1 through 18 above, as if fully stated
5
20.
FHFA denies the allegations in Paragraph 20 of the Complaint.
6
21.
In answering Paragraph 21 of the Complaint, FHFA admits only that Fannie
3
4
7
herein.
Mae’s lien was not extinguished. The remainder of the allegations of Paragraph 21 constitute a
8
conclusion of law to which no response is required. To the extent a response to the allegations is
9
10
required, FHFA denies them.
AFFIRMATIVE DEFENSES
11
12
FHFA’s investigation of these claims is continuing. By this Answer, FHFA waives no
13
affirmative defenses and reserves its right to amend the Answer to insert any subsequently
14
discovered affirmative defenses.
15
FIRST AFFIRMATIVE DEFENSE
16
The Complaint fails to state a claim for which relief can be granted because, among other
17
18
reasons, Plaintiff’s claim of free and clear title to the Property is barred by 12 U.S.C.
19
§ 4617(j)(3), which precludes an HOA sale from extinguishing Fannie Mae’s interest in the
20
Property and preempts any state law to the contrary.
21
22
23
SECOND AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the doctrines of laches, estoppel, waiver, unjust
enrichment, and/or unclean hands.
24
THIRD AFFIRMATIVE DEFENSE
25
26
27
The damages, if any, that were allegedly sustained by Plaintiff as a result of the acts
described in the Complaint were caused in whole or were contributed to in part by reason of the
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
10031111.1/038236.0001
4
Case 2:15-cv-00112-MMD-CWH Document 15-1 Filed 02/13/15 Page 6 of 10
1
acts, omissions, negligence, and/or intentional misconduct of Plaintiff and counter-defendant
2
Green Valley Ranch Community Association (the “HOA”)
3
FOURTH AFFIRMATIVE DEFENSE
4
The damages, if any, that were allegedly sustained by Plaintiff as a result of the acts
5
6
described in the Complaint were caused in whole or were contributed to in part by reason of the
7
acts, omissions, negligence, and/or intentional misconduct of one or more third parties over
8
whom neither FHFA nor Fannie Mae had control.
9
10
11
FIFTH AFFIRMATIVE DEFENSE
Plaintiff has an adequate remedy at law and has, through its own acts and/or omissions,
failed to mitigate its damages, the existence of which are denied.
12
SIXTH AFFIRMATIVE DEFENSE
13
14
Plaintiff has failed to plead any alleged acts or omissions of FHFA or Fannie Mae
15
sufficient to warrant the consideration of general, expectation, consequential, or compensatory
16
damages.
17
18
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff is not entitled to equitable relief.
19
EIGHTH AFFIRMATIVE DEFENSE
20
21
Plaintiff failed to join one or more indispensable parties.
NINTH AFFIRMATIVE DEFENSE
22
23
FHFA and Fannie Mae breached no duty with regard to Plaintiff.
24
25
26
TEN AFFIRMATIVE DEFENSE
FHFA incorporates by reference those defenses enumerated in Rules 8 and 12 of the
Nevada Rules of Civil Procedure as if fully set forth herein. In the event further investigation
27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
10031111.1/038236.0001
5
Case 2:15-cv-00112-MMD-CWH Document 15-1 Filed 02/13/15 Page 7 of 10
1
reveals the applicability of any such defenses, FHFA reserves the right to seek leave of court to
2
amend this Answer to assert the same.
3
COUNTERCLAIMS
4
FIRST COUNTERCLAIM
(Declaratory Judgment versus Plaintiff
and Green Valley Ranch Community Association (the “HOA”))
5
6
7
8
9
10
11
12
1.
FHFA incorporates by reference the responses of all previous paragraphs, as if
fully set forth herein.
2.
Pursuant to 28 U.S.C. § 2201 and NRS § 40.010, this Court has the power and
authority to declare FHFA and Fannie Mae’s rights and interests in the Property.
3.
Fannie Mae has a property interest in the Property through its interest in the Deed
of Trust.
13
14
15
16
17
18
19
4.
The Federal Housing Finance Agency (“FHFA” or the “Conservator”) is an
agency of the federal government of the United States of America and is also the Conservator for
Fannie Mae.
5.
The Conservator has succeeded by law to all of Fannie Mae’s “rights, titles,
powers, and privileges.” 12 U.S.C. § 4617(b)(2)(A)(i).
6.
During the Conservatorship, “[n]o property of [FHFA] shall be subject to levy,
20
attachment, garnishment, foreclosure, or sale without the consent of the [FHFA], nor shall any
21
22
23
involuntary lien attach to the property of [FHFA].” 12 U.S.C. § 4617(j)(3).
7.
Fannie Mae’s property interest at issue is property of the Conservator. Therefore,
24
applying NRS Chapter 116 or other state law in a manner that extinguishes Fannie Mae’s interest
25
in the Property would violate 12 U.S.C. § 4617(j)(3).
26
27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
10031111.1/038236.0001
6
Case 2:15-cv-00112-MMD-CWH Document 15-1 Filed 02/13/15 Page 8 of 10
1
2
3
8.
12 U.S.C. § 4617(j)(3) preempts any state law that would permit a foreclosure on
a superpriority lien to extinguish a property interest of Fannie Mae while it is under FHFA’s
conservatorship.
4
9.
Pursuant to 12 U.S.C. § 4617(j)(3), the HOA Sale could not extinguish Fannie
5
6
7
Mae’s interest in the Deed of Trust.
10.
FHFA and Fannie Mae are entitled to a declaration from this Court, pursuant to
8
28 U.S.C. § 2201 and NRS § 40.010, that Fannie Mae has an interest in a first position Deed of
9
Trust which still encumbers the Property after the HOA Sale.
10
11
11.
FHFA and Fannie Mae are entitled to a determination from this Court, pursuant to
28 U.S.C. § 2201 and NRS § 40.010, that 12 U.S.C. § 4617(j)(3) precludes the HOA Sale from
12
extinguishing Fannie Mae’s property interest.
13
SECOND COUNTERCLAIM
(Quiet Title versus Plaintiff)
14
15
1.
FHFA incorporates by reference the responses of all previous paragraphs, as if
16
fully set forth herein.
17
18
19
20
21
22
23
2.
Pursuant to 28 U.S.C. § 2201 and NRS § 40.010, this Court has the power and
authority to resolve the Plaintiff’s adverse claims in the Property.
3.
Fannie Mae has a property interest in the Property through its interest in the Deed
of Trust.
4.
Plaintiff claims an interest in the Property through a foreclosure deed that is
adverse to Fannie Mae’s interest.
24
25
26
5.
Fannie Mae’s interest in the Deed of Trust encumbering the Property constitutes
an interest in real property.
27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
10031111.1/038236.0001
7
Case 2:15-cv-00112-MMD-CWH Document 15-1 Filed 02/13/15 Page 9 of 10
1
2
3
6.
Fannie Mae’s property interest at issue is property of the Conservator. Therefore,
applying NRS Chapter 116 or other state law in a manner that extinguishes Fannie Mae’s interest
in the Property would violate 12 U.S.C. § 4617(j)(3).
4
7.
Based on the adverse claims being asserted by the parties, FHFA and Fannie Mae
5
6
7
8
9
10
11
are entitled to a judicial determination regarding the rights and interests of the respective parties
to the case.
8.
FHFA and Fannie Mae are entitled to a determination from this Court, pursuant to
28 U.S.C. § 2201 and NRS § 40.010, that Fannie Mae has an interest in a first position Deed of
Trust which encumbers the Property after the HOA Sale.
9.
FHFA and Fannie Mae are entitled to a determination from this Court, pursuant to
12
28 U.S.C. § 2201 and NRS § 40.010, that Fannie Mae’s property interest by virtue of the Deed of
13
14
Trust is superior to the interest, if any, acquired by Plaintiff through the foreclosure deed.
PRAYER FOR RELIEF
15
16
WHEREFORE, FHFA prays for the following relief:
17
1.
That Plaintiff’s request for injunctive relief be denied;
2.
That Plaintiff’s request for declaratory relief be denied;
3.
That Plaintiff takes nothing by way of his Complaint;
4.
That the Court declare that 12 U.S.C. § 4617(j)(3) preempts any Nevada law that
18
19
20
21
22
23
24
25
26
would permit a foreclosure on a superpriority lien to extinguish a property interest of Fannie Mae
while it is under FHFA’s conservatorship;
5.
That the Court declare that the HOA Sale did not extinguish the Deed of Trust
and thus did not convey the Property free and clear to Plaintiff;
6.
That the Court declare that Fannie Mae’s property interest is superior to the
27
interest, if any, of Plaintiff;
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
10031111.1/038236.0001
8
Case 2:15-cv-00112-MMD-CWH Document 15-1 Filed 02/13/15 Page 10 of 10
1
7.
That FHFA be awarded reasonable attorneys’ fees and costs; and
2
8.
That FHFA receive such other relief as the Court deems just and proper.
3
DATED this _____ day of February, 2015.
4
FENNEMORE CRAIG, P.C.
5
By:
Leslie Bryan Hart, Esq. (SBN 4932)
John D. Tennert, Esq. (SBN 11728)
300 E. Second St., Suite 1510
Reno, Nevada 89501
Tel: 775-788-2228 Fax: 775-788-2229
lhart@fclaw.com; jtennert@fclaw.com
6
7
8
9
and
10
(Pro Hac Vice to be submitted)
ARNOLD & PORTER LLP
Asim Varma, Esq.
Howard N. Cayne, Esq.
Michael A.F. Johnson, Esq.
555 12th Street NW
Washington, DC 20004
Tel: (202) 942-5000 Fax: (202) 942-5999
Asim.Varma@aporter.com;
hcayne@aporter.com;
Michael.Johnson@aporter.com;
11
12
13
14
15
16
Attorneys for Proposed Intervenor Federal Housing
Financing Agency
17
18
19
20
21
22
23
24
25
26
27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
(775) 788-2200
10031111.1/038236.0001
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?