US Bank, National Association v. NV Eagles, LLC, et al

Filing 114

ORDER granting ECF No. 54 Motion to Amend Complaint; denying as moot ECF Nos. 66 , 74 , and 95 Motions for Summary Judgment, ECF No. 86 Counter Motion for Summary Judgment, and ECF No. 75 Motion to Strike; directing Defendants to respond to Amended Complaint by 6/24/2016; directing applications to extend any dates set by ECF No. 50 Scheduling Order be received no later than 5:00 p.m. 6/24/2016; vacating the 6/29/2016 Motion Hearing. Signed by Judge Robert C. Jones on 5/25/2016. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5
6
7
8

U.S. BANK, NATIONAL ASSOCIATION, AS
TRUSTEE FOR THE CERTIFICATEHOLDERS
OF BEAR STEARNS ASSET-BACKED
SECUIRITIES 1 TRUST 2006-AC5, ASSETBACKED CERTIFICATES, SERIES 2006-AC5,

9

Plaintiff,

10
11

2:15-cv-00786-RCJ-PAL
ORDER

vs.
NV EAGLES, LLC et al.

12

Defendants.

13
14

This case arises from the foreclosure of a residential property pursuant to a homeowners

15

association lien. Pending before the Court are a Motion to Amend (ECF No. 54), four Motions

16

for Summary Judgment (ECF Nos. 66, 74, 86, 95), and a Motion to Strike (ECF No. 75).

17

I.

18

FACTS AND PROCEDURAL HISTORY
On June 27, 2006, Michael Cress purchased a home located at 517 W Mesquite

19

Boulevard #1524, Mesquite, Nevada 89027 (“the Property”). (Compl. ¶¶ 2, 12, ECF No. 1). The

20

Deed of Trust executed identified GreenPoint Mortgage Funding, Inc. as the lender, MERS as

21

the beneficiary, Marin Conveyance Corp. as the trustee, and a secured amount of $148,000. (Id.

22

¶ 13). The Property is located in a planned community and is subject to certain covenants,

23

conditions, and restrictions (“CC&Rs”). On April 13, 2012, a Notice of Delinquent Assessment

24
25
26

1

1

Lien was recorded by Defendant Nevada Association Services, Inc. (“NAS”) on behalf of

2

Sandstone Condominiums Homeowners Association (“the HOA”) for Cress’s failure to pay dues

3

owed. (Id. ¶ 14). On May 31, 2012, NAS recorded a Notice of Default and Election to Sell under

4

Homeowners Association Lien against the Property. (Id. ¶ 15).

5

In July 2012, Bank of America, the prior beneficiary and servicer of the loan, requested a

6

current HOA lien payoff demand and account ledger from NAS. (Id. ¶ 16). Bank of America was

7

informed by NAS that NAS was not willing to provide a current payoff ledger due to a concern

8

of violating the Fair Debt Collection Practices Act. (Id. ¶ 17). However, based on information

9

about the assessments charged on similar properties within the HOA, Bank of America estimated

10

the HOA’s lien plus reasonable collection costs to be about $2,036.33. (Id. ¶ 18). Bank of

11

America therefore tendered this amount to NAS in an attempt to satisfy the HOA’s lien and

12

protect its interest in the Property. (Id. ¶ 19). On August 10, 2012, NAS informed Bank of

13

America that the payoff had been rejected. (Id. ¶ 20).

14

On January 22, 2013, a Notice of Foreclosure Sale was recorded against the Property by

15

NAS at the HOA’s direction. (Id. ¶ 21). On May 21, 2013, a Foreclosure Deed was recorded with

16

Defendant Underwood Partners, LLC named as the grantee for having allegedly paid $9,000 at a

17

non-judicial foreclosure sale. (Id. ¶¶ 22–23). Underwood Partners then sold the Property to

18

Defendant NV Eagles, LLC. (Id. ¶ 24). Though no date is included in the Complaint, at some

19

point Plaintiff U.S. Bank became the assigned beneficiary under the promissory note and deed of

20

trust. (Id. ¶ 6).
Plaintiff alleges nine causes of action: (1) quiet title to the Property in favor of Plaintiff1;

21
22

(2) preliminary injunction against NV Eagles; (3) wrongful foreclosure against the HOA and

23

NAS; (4) negligence against the HOA and NAS; (5) negligence per se against the HOA and

24

1

25
26

Or alternatively for declaratory judgement regarding the parties’ rights vis-à-vis the Property.
2

1

NAS; (6) breach of contract against the HOA and NAS; (7) misrepresentation against the HOA;

2

(8) unjust enrichment against Underwood, NV Eagles, the HOA, and NAS; and (9) breach of the

3

covenant of good faith and fair dealing against the HOA and NAS. Plaintiff has filed a motion to

4

amend the complaint, a motion for summary judgment, and a counter motion for summary

5

judgment. Defendant NV Eagles has filed a motion for summary judgment. Defendant NAS has

6

filed a motion to strike the HOA’s answer to the Complaint, which includes a third-party

7

complaint against NAS.

8

II.

9

MOTION TO AMEND COMPLAINT
The Court needs to correct an error made in regard to Plaintiff’s motion to amend the

10

complaint. Plaintiff filed its Complaint on April 28, 2015 and included NAS as a defendant. On

11

May 27, 2015, NAS filed a motion to dismiss the Complaint, arguing that U.S. Bank had failed

12

to submit to mediation as required by Nev. Rev. Stat. 38.310, or alternatively, that NAS claims

13

no interest in the property. (See ECF No. 28). On July 17, 2015, U.S. Bank filed a motion to

14

amend its complaint to exclude NAS as a defendant in response to the concerns about mediation.

15

(See ECF No. 45). U.S. Bank and NAS also filed a stipulation to dismiss NAS from the case

16

without prejudice. (See ECF No. 46).

17

On July 21, 2015, the Court granted the stipulation to dismiss NAS and also denied

18

NAS’s prior motion to dismiss the case because mediation was not required. (See ECF No. 48).

19

Also, in the motion to dismiss, NAS and the HOA argued that the Court should dismiss the quiet

20

title claim because they claimed no current interest in the Property; however, the Court denied

21

the request because the validity of the sale effectuated by NAS at the direction of the HOA

22

remained at issue. (Id.). U.S. Bank withdrew its motion to amend the complaint on August 20,

23
24
25
26

3

1

2015 because it was no longer necessary to exclude NAS as a defendant after the Court denied

2

NAS’s motion to dismiss. (See ECF No. 53).
On August 25, 2015, U.S. Bank timely2 renewed its motion to amend the complaint,

3
4

requesting that NAS be brought back in as a defendant. (See ECF Nos. 54, 55). Although

5

Plaintiff had withdrawn its first motion to amend, the Court inadvertently denied that motion,

6

whereas the docket incorrectly reflected that the Court denied Plaintiff’s renewed motion to

7

amend. (See ECF No. 56). In other words, the Court has not yet ruled on Plaintiff’s renewed

8

motion to amend.

9

The renewed motion to amend attempts to bring NAS back in as a defendant, and it

10

would also remove two claims (preliminary injunction, negligence per se) and add four new

11

claims (commercial reasonableness, voidable transfer under Nev. Rev. Stat. §§ 112.180 and

12

112.190, and violation of the Takings Clause). The Court finds it necessary to bring NAS back in

13

as a defendant because Plaintiff’s request to do so was filed in a timely manner. Also, the

14

validity of the sale effectuated by NAS at the direction of the HOA remains at issue. The Court

15

grants the renewed motion to amend the complaint. As a result, the Court must deny as moot the

16

pending motions for summary judgment and the motion to strike.

17

///

18

///

19

///

20

///

21

///

22

///

23
24
25
26

2

The last date to amend pleadings and add parties was August 25, 2015. (See Order, ECF No.
50).
4

1
2
3
4
5
6
7
8
9
10

CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion to Amend the Complaint (ECF No.
54) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motions for Summary Judgment (ECF No.
66, 95) and Counter Motion for Summary Judgment (ECF No. 86) are DENIED as moot.
IT IS FURTHER ORDERED that Defendant NV Eagles’s Motion for Summary
Judgment (ECF No. 74) is DENIED as moot.
IT IS FURTHER ORDERED that Defendant NAS’s Motion to Strike (ECF No. 75) is
DENIED as moot.
IT IS FURTHER ORDERED that Defendants shall file a responsive pleading to the

11

Amended Complaint by June 24, 2016. Applications to extend any dates set by Discovery Plan

12

and Scheduling Order (ECF No. 50) shall be received no later than 5:00 p.m., June 24, 2016, and

13

shall fully comply with the requirements of LR 26-4.

14
15
16
17

IT IS FURTHER ORDERED that the Motion Hearing scheduled for June 29, 2016 is
hereby VACATED.
IT IS SO ORDERED.
Dated this 25th day of May 2016.

18
19
20

_____________________________________
ROBERT C. JONES
United States District Judge

21
22
23
24
25
26

5