Alessi & Koenig, LLC v. Dolan, Jr. et al

Filing 17

ORDER Granting 16 Stipulation to Entry of Order Permitting Federal Housing Finance Agency to Intervene as Conservator of the Federal National Mortgage Association. Signed by Magistrate Judge Carl W. Hoffman on 7/20/15. (Copies have been distributed pursuant to the NEF - PS) (Main Document 17 replaced on 7/20/2015) (PS).

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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: [phone] Fax: [phone]
[e-mail]; [e-mail]

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Attorneys for Proposed Intervenor Federal Housing Finance Agency

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ALESSI & KOENIG, LLC, a Nevada limited
liability company,
Plaintiff,
v.
ALFRED T. DOLAN, JR.; BARBARA ANN
DOLAN; FEDERAL NATIONAL
MORTGAGE ASSOCIATION;
SUMMERLIN NORTH COMMUNITY
ASSOCIATION; DOE INDIVIDUALS I-X,
inclusive; and ROE CORPORATIONS XIXX, inclusive,
Defendants.

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STIPULATION TO ENTRY OF ORDER
AND [PROPOSED] ORDER
PERMITTING FEDERAL HOUSING
FINANCE AGENCY TO INTERVENE AS
CONSERVATOR OF THE FEDERAL
NATIONAL MORTGAGE ASSOCIATION

FEDERAL NATIONAL MORTGAGE
ASSOCIATION,

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CASE NO. 2:15-cv-00805-JCM-CWH

Counterclaimant,

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v.

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SATICOY BAY LLC SERIES 10250 SUN
DUSK LN; and SUNSET MESA
COMMUNITY ASSOCIATION,
Counter-defendants.

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1.

Conservator for Defendant Federal National Mortgage Association (“Fannie Mae”), seeks to
intervene in the above-captioned action pursuant to 12 U.S.C. § 4617(b)(2)(A)(i) and Fed. R.
Civ. P. 24.
2.

On September 6, 2008, FHFA’s Director appointed the FHFA Conservator of

Fannie Mae and the Federal Home Loan Mortgage Corporation in accordance with the Housing
and Economic Recovery Act of 2008, Pub. L. 110-289, 122 Stat. 2654 (codified at 12 U.S.C.§

FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

The Federal Housing Finance Agency (“FHFA” or “Conservator”), as

10596429.1

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4617) (“HERA”), and the Federal Housing Enterprises Financial Safety and Soundness Act of

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1992 (12 U.S.C. § 4501, et. seq.).

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3.

The FHFA, as Conservator, has succeeded to “all rights, titles, powers, and

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privileges” of Fannie Mae, including its right to sue and be sued in the federal courts. See

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12 U.S.C. § 4617(b)(2)(A)(i).

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4.

Accordingly, FHFA asserts that it has an unconditional federal statutory right to

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intervene in this matter, see Fed. R. Civ. P. 24(a)(1), and to assert its interests in a manner

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consistent with the Conservator’s powers and duties.

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5.

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Answer.

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Pursuant to Fed. R. Civ. P. 24(c), FHFA attaches as Exhibit A its intended

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FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10596429.1

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STIPULATION

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FHFA and Plaintiff Alessi & Koenig, LLC and Counter-defendant Sunset Mesa
Community Association through their attorneys of record, hereby stipulate and request that the

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Court make this stipulation an order of the Court:
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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.

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DATED this 13th day of July, 2015.

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ALESSI & KOENIG, LLC

FENNEMORE CRAIG, P.C.

By:

By:

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/s/ Vanessa Goulet
Vanessa S. Goulet, Esq. (SBN 13688)
9500 West Flamingo Road, Suite 205
Las Vegas, Nevada 89147
Tel: [phone] Fax: [phone]

Attorneys for Plaintiff Alessi & Koenig, LLC
and Counter-defendant Sunset Mesa
Community Association

Attorneys for Proposed Intervenor Federal
Housing Financing Agency

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WRIGHT, FINLAY & ZAK, LLP
By:

/s/ Dana Jonathon Nitz
Dana Jonathon Nitz, Esq. (SBN 00050)
Chelsea Crowton (SBN 11547)
5532 South Fort Apache Rd., Suite 110
Las Vegas, NV 89148
Tel: [phone] Fax [phone]
[e-mail]
[e-mail]

Attorney for Defendant/Counterclaimant
Federal National Mortgage Association

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/s/ Leslie Bryan Hart
Leslie Bryan Hart, Esq. (SBN 4932)
John D. Tennert, Esq. (SBN 11728)
300 E. Second St., Suite 1510
Reno, Nevada 89501
Tel: [phone] Fax: [phone]
[e-mail]; [e-mail]

ORDER
DATED: July 20, 2015

IT IS SO ORDERED.

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________________________________
UNITED STATES DISTRICT JUDGE
United States Magistrate Judge
DATED: ________________________

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FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10596429.1

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Case 2:15-cv-00805-JCM-CWH Document 16-1 Filed 07/13/15 Page 1 of 10

Exhibit A

Exhibit A

Case 2:15-cv-00805-JCM-CWH Document 16-1 Filed 07/13/15 Page 2 of 10

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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: [phone] Fax: [phone]
[e-mail]; [e-mail]

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Attorneys for Proposed Intervenor Federal Housing Finance Agency

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ALESSI & KOENIG, LLC, a Nevada limited
liability company, ,
Plaintiff,
v.
ALFRED T. DOLAN, JR.; BARBARA ANN
DOLAN; FEDERAL NATIONAL
MORTGAGE ASSOCIATION;
SUMMERLIN NORTH COMMUNITY
ASSOCIATION; DOE INDIVIDUALS I-X,
inclusive; and ROE CORPORATIONS XIXX, inclusive,
Defendants.

CASE NO. 2:15-cv-00805-JCM-CWH
ANSWER AND COUNTERCLAIMS BY
PROPOSED INTERVENOR THE
FEDERAL HOUSING FINANCE
AGENCY AS CONSERVATOR FOR THE
FEDERAL NATIONAL MORTGAGE
ASSOCIATION

FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Counterclaimant,

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v.
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SATICOY BAY LLC SERIES 10250 SUN
DUSK LN; and SUNSET MESA
COMMUNITY ASSOCIATION,
Counter-defendants.

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Simultaneously with this Answer, the Federal Housing Finance Agency (“FHFA”), in its

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capacity as Conservator for the Federal National Mortgage Association (“Fannie Mae”), is filing

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a motion, pursuant to Federal Rule of Civil Procedure 24, to intervene in this action. In

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accordance with Rule 24(c)’s requirement that a motion to intervene “be accompanied by a

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pleading that sets out the claim or defense for which intervention is sought,” FHFA submits this
Answer to respond as follows to the Complaint filed by Plaintiff Alessi & Koenig, LLC (“Alessi

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& Koenig” or “Plaintiff”):

FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10596831.1

Case 2:15-cv-00805-JCM-CWH Document 16-1 Filed 07/13/15 Page 3 of 10

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PARTIES, JURISDICTION AND VENUE
1.

FHFA is without knowledge or information sufficient to form a belief as to the

truth of the allegations within Paragraph 1 of the Complaint.

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2.

FHFA admits the allegations within Paragraph 2 of the Complaint.

3.

FHFA admits the allegations within Paragraph 3 of the Complaint.

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4.

FHFA admits the allegations within Paragraph 4 of the Complaint.

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5.

FHFA is without knowledge or information sufficient to form a belief as to the

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truth of the allegations within Paragraph 5 of the Complaint,.
6.

FHFA is without knowledge or information sufficient to form a belief as to the

truth of the allegations that concern Doe Individual Defendants and Roe Corporation Defendants

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within Paragraph 6 of the Complaint. The remainder of Paragraph 6 of the Complaint states
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legal theories and legal conclusions that do not require a response. To the extent a response is

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required, denied.

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7.

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that jurisdiction and venue are proper in this Court.

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FHFA admits that the subject Property is located in Clark County, Nevada and

THE UNDERLYING FORECLOSURE SALE
8.

FHFA repeats its responses to Paragraphs 1-7 as if fully stated herein.

9.

FHFA admits that a Declaration of Covenants, Conditions, and Restrictions and

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Reservations of Easements (“CC&Rs”) for Sunset Mesa Community Association (the “HOA”)

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was recorded in the Official Records of the Clark County Recorder on May 31, 1996, as Book

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and Instrument Number 19960531-01425, subsequently amended per statute on January 28,

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2003, as Book and Instrument Number 20030128-01604, and that this recording speaks for itself.

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The remainder of Paragraph 8 states a legal conclusion that does not require a response.

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FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10596831.1

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Case 2:15-cv-00805-JCM-CWH Document 16-1 Filed 07/13/15 Page 4 of 10

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10.

FHFA admits that Paragraph 10 reproduces an excerpt from Section 7.2.6 of the

CC&Rs for the HOA, and that this recording speaks for itself.
11.

FHFA admits that a Grant, Bargain and Sale Deed was recorded on March 21,

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1997, as Book and Instrument Number 970321-01652, showing that Alfred T. Dolan, Sr. and
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Patricia Dolan became title owners of real property commonly known as 10250 Sun Disk Lane,

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Las Vegas, Nevada 89144; APN 137-25-714-049 (the “Property”), and that this recording

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speaks for itself.

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12.

FHFA admits the allegations contained in Paragraph 12 of the Complaint, and

notes that the referenced recording speaks for itself.
13.

FHFA admits the allegations contained in Paragraph 13 of the Complaint, and

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notes that the referenced recording speaks for itself.
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14.

Paragraph 14 of the Complaint states a legal conclusion that does not require a

response. To the extent a response is required, denied.
15.

FHFA avers that the referenced recording in Paragraph 15 of the Complaint

speaks for itself. The remainder of Paragraph 15 of the Complaint states a legal conclusion that
does not require a response. To the extent a response is required, denied.
16.

FHFA is without knowledge or information sufficient to form a belief as to the

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truth of the allegations within Paragraph 16 of the Complaint.
17.

Paragraph 17 of the Complaint states a legal conclusion that does not require a

response. To the extent a response is required, denied.
18.

FHFA is without knowledge or information sufficient to form a belief as to the

truth of the allegations within Paragraph 18 of the Complaint. The remainder of Paragraph 18 of
the Complaint states a legal conclusion that does not require a response. To the extent a response

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is required, denied.
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FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10596831.1

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Case 2:15-cv-00805-JCM-CWH Document 16-1 Filed 07/13/15 Page 5 of 10

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19.

FHFA avers that the referenced recording in Paragraph 19 of the Complaint

speaks for itself. The remainder of Paragraph 19 of the Complaint states a legal conclusion that
does not require a response.

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20.

FHFA is without knowledge or information sufficient to form a belief as to the

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truth of the allegations within Paragraph 20 of the Complaint.
21.

FHFA is without knowledge or information sufficient to form a belief as to the

truth of the allegations within Paragraph 21 of the Complaint.
22.

FHFA is without knowledge or information sufficient to form a belief as to the

truth of the allegations within Paragraph 22 of the Complaint.
23.

FHFA is without knowledge or information sufficient to form a belief as to the

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truth of the allegations within Paragraph 23 of the Complaint.
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24.

FHFA is without knowledge or information sufficient to form a belief as to the

truth of the allegations within Paragraph 24 of the Complaint.
25.

FHFA admits that Fannie Mae has an interest in the Property. The remainder of

Paragraph 25 of the Complaint states a legal conclusion that does not require a response. To the
extent a response is required, denied.
26.

FHFA is without knowledge or information sufficient to form a belief as to the

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truth of the allegations within Paragraph 26 of the Complaint.
27.

Paragraph 27 of the Complaint states legal conclusions that do not require a

response. FHFA refers to the statute referenced therein for the truth of its contents.
28.

FHFA is without knowledge or information sufficient to form a belief as to the

truth of the allegations within Paragraph 28 of the Complaint.
29.

FHFA is without knowledge or information sufficient to form a belief as to the

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truth of the allegations within Paragraph 29 of the Complaint.
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FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10596831.1

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Case 2:15-cv-00805-JCM-CWH Document 16-1 Filed 07/13/15 Page 6 of 10

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30.

FHFA is without knowledge or information sufficient to form a belief as to the

truth of the allegations within Paragraph 30 of the Complaint.
31.

Paragraph 31 of the Complaint states a legal conclusion that does not require a

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response. To the extent a response is required, denied.
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32.

FHFA is without knowledge or information sufficient to form a belief as to the

truth of the allegations within Paragraph 32 of the Complaint.
AFFIRMATIVE DEFENSES

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FHFA’s investigation of these claims is continuing. By this Answer, FHFA waives no

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affirmative defenses and reserves its right to amend the Answer to insert any subsequently

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discovered affirmative defenses.

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FIRST AFFIRMATIVE DEFENSE

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The Complaint fails to state a claim for which relief can be granted because, among other

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reasons, Plaintiff’s claim of free and clear title to the Property is barred by 12 U.S.C.

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§ 4617(j)(3), which precludes a homeowners’ association sale from extinguishing Fannie Mae’s

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interest in the Property and preempts any state law to the contrary.

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SECOND AFFIRMATIVE DEFENSE

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Plaintiff’s claims are barred by the doctrines of laches, estoppel, waiver, unjust
enrichment, and/or unclean hands.

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THIRD AFFIRMATIVE DEFENSE
The damages, if any, that were allegedly sustained by Plaintiff as a result of the acts

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described in the Complaint were caused in whole or were contributed to in part by reason of the
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acts, omissions, negligence, and/or intentional misconduct of Plaintiff.

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FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

FOURTH AFFIRMATIVE DEFENSE
The damages, if any, that were allegedly sustained by Plaintiff as a result of the acts
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Case 2:15-cv-00805-JCM-CWH Document 16-1 Filed 07/13/15 Page 7 of 10

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described in the Complaint were caused in whole or were contributed to in part by reason of the

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acts, omissions, negligence, and/or intentional misconduct of one or more third parties over

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whom neither FHFA nor Fannie Mae had control.

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FIFTH AFFIRMATIVE DEFENSE

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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.

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SIXTH AFFIRMATIVE DEFENSE
Plaintiff failed to join one or more indispensable parties.
SEVENTH AFFIRMATIVE DEFENSE

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Fannie Mae breached no duty with regard to Plaintiff.
EIGHTH AFFIRMATIVE DEFENSE

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Any acceptance of any portion of the excess proceeds from the Foreclosure Sale does not

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“satisfy” the amount due and owing on the Loan, and would not constitute a waiver of FHFA or

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Fannie Mae’s rights under the Loan and Deed of Trust, or statute.

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NINTH AFFIRMATIVE DEFENSE

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Any acceptance of any portion of the excess proceeds from the Foreclosure Sale does not

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“satisfy” the amount due and owing on the note secured by the Deed of Trust, and would not

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constitute a waiver of FHFA or Fannie Mae’s rights under the note and Deed of Trust, or statute.

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CAUSES OF ACTION
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FIRST CAUSE OF ACTION
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(Declaratory Judgment versus Counter-Defendants Saticoy Bay and the HOA)
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1.

FHFA incorporates by reference the responses of all previous paragraphs, as if

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fully set forth herein.
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2.

Pursuant to 28 U.S.C. § 2201 and NRS § 40.010, this Court has the power and

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authority to declare FHFA and Fannie Mae’s rights and interests in the Property.
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FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10596831.1

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Case 2:15-cv-00805-JCM-CWH Document 16-1 Filed 07/13/15 Page 8 of 10

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3.

is also the Conservator for Fannie Mae.
4.

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5.

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involuntary lien attach to the property of [FHFA].” 12 U.S.C. § 4617(j)(3).
6.

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Property would violate 12 U.S.C. § 4617(j)(3).

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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.

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Fannie Mae’s 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

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During the Conservatorship, “[n]o property of [FHFA] shall be subject to levy,

attachment, garnishment, foreclosure, or sale without the consent of the [FHFA], nor shall any

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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).

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FHFA is an agency of the federal government of the United States of America and

8.

As the current beneficiary under the Deed of Trust and owner of the Note, Fannie

Mae’s interest in the Property retains its first position status in the chain of title after the HOA
Sale.

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9.

Saticoy Bay claims an interest in the Property through a Trustee’s Deed Upon

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Sale recorded in the Clark County Recorder’s Office as Book and Instrument Number 20140918-

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0001393 that is adverse to FHFA and Fannie Mae’s interests.

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extinguish the Deed of Trust or otherwise extinguish Fannie Mae’s interest.
11.

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12.

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FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

FHFA and Fannie Mae are entitled to a judicial determination regard the rights

and interests of the respective parties to the case.
13.

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Pursuant to 12 U.S.C. § 4617(j)(3), the foreclosure sale conducted by the HOA

could not extinguish Fannie Mae’s interest in the Deed of Trust.

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At no time did HOA, Plaintiff or Plaintiff’s trustee obtain consent from FHFA to

A justiciable controversy exists between FHFA, Fannie Mae, and Counter-

defendants. FHFA and Fannie Mae have legally protectable interests in the controversy. The
issue is ripe for judicial determination.
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14.

FHFA and Fannie Mae are entitled to a determination from this Court, pursuant to

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28 U.S.C. § 2201, that 12 U.S.C. § 4617(j)(3) precludes an HOA sale from extinguishing Fannie

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Mae’s interest in the Deed of Trust.

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SECOND CAUSE OF ACTION

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(Quiet Title versus Counter-Defendant Saticoy Bay)

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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 resolve the parties’ adverse claims in the Property.
3.

At the time of the foreclosure sale, the Deed of Trust was a first secured interest

on the Property as intended by NRS 116.3116(2)(b).
4.

FHFA, as Fannie Mae’s 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).
5.

Saticoy Bay claims an interest in the Property through its purported purchase of

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the Property at the HOA Sale on September 3, 2014, and claims that the foreclosure sale

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extinguished the Deed of Trust. Saticoy Bay’s interest in the Property is adverse to FHFA and

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Fannie Mae’s interest.

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6.

Based on the adverse claims being asserted by the parties, FHFA and Fannie Mae

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are entitled to a judicial determination regarding the rights and interests of the respective parties

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to the case.

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7.

FHFA and Fannie Mae are entitled to a determination from this Court, pursuant to

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28 U.S.C. § 2201 and NRS § 40.010, that the HOA Sale did not extinguish Fannie Mae’s interest

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in the Deed of Trust.

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8.

FHFA and Fannie Mae are entitled to a determination from this Court, pursuant to

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28 U.S.C. § 2201 and NRS § 40.010 that Fannie Mae’s interest in the Deed of Trust is superior

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to the interest, if any, acquired by Saticoy Bay through the foreclosure deed.
PRAYER FOR RELIEF

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FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

WHEREFORE, FHFA prays for the following relief:
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Case 2:15-cv-00805-JCM-CWH Document 16-1 Filed 07/13/15 Page 10 of 10

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1.

That the Court declare that 12 U.S.C. § 4617(j)(3) preempts any Nevada law that

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would permit a foreclosure on a superpriority lien to extinguish Fannie Mae’s

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interest while it is under FHFA’s conservatorship;

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2.

That the Court declare that the HOA sale did not extinguish Fannie Mae’s interest

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in the Property and thus did not convey the Property free and clear to Saticoy

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Bay;

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3.

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That the Court declare that Fannie Mae’s property interest is superior to the
interest, if any, of Saticoy Bay;

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4.

That FHFA be awarded reasonable attorneys’ fees and costs; and

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5.

That FHFA receive such other relief as the Court deems just and proper.

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DATED this ___ day of July, 2015.

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FENNEMORE CRAIG, P.C.

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By:
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Leslie Bryan Hart, Esq. (SBN 4932)
John D. Tennert, Esq. (SBN 11728)
300 E. Second St., Suite 1510
Reno, Nevada 89501
Tel: [phone] Fax: [phone]
[e-mail]; [e-mail]

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Attorneys for Proposed Intervenor Federal Housing
Financing Agency

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FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10596831.1

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