U.S. Bank, National Association vs Countryside Homeowners Association, et al

Filing 63

FINAL JUDGMENT per ECF No. 58 Proposed Order. Signed by Judge Robert C. Jones on 5/22/2017. (Copies have been distributed pursuant to the NEF - KR)

Case 2:15-cv-01463-RCJ-GWF Document 58 Filed 04/27/17 Page 1 of 3

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ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
VATANA LAY, ESQ.
Nevada Bar No. 12993
AKERMAN LLP
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

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Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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AKERMAN LLP

1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

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U.S. BANK, NATIONAL ASSOCIATION, AS
TRUSTEE FOR THE HOLDERS OF THE
CSFB MORTGAGE SECURITIES CORP.,
ADJUSTABLE RATE MORTGAGE TRUST
2005-8, ADJUSTABLE RATE MORTGAGE–
BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-8,

Case No.: 2:15-cv-01463-RCJ-GWF
[PROPOSED] FINAL JUDGMENT

Plaintiff,

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vs.

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COUNTRYSIDE HOMEOWNERS
ASSOCIATION; K K REAL ESTATE
INVESTMENT FUND, LLC; DOE
INDIVIDUALS I-X, inclusive, and ROE
CORPORATIONS I-X, inclusive,

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Defendants.

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Pursuant to the Court's order dated April 13, 2017 [ECF. No. 57], the Court hereby enters
final judgment in this case as follows:
1. This action concerns the real property commonly known as 8543 Ebony Hills Way, Las
Vegas, NV 89123, APN 177-15-711-001, more specifically described as:
Parcel ONE (1):

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Lot ONE (1) in Block One (1) of Maryland / Pebble – Unit 3 as shown by map thereof on file in
Book 69 of plats, Page 49 in the office of the County Recorder of Clark County, Nevada.

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{41603760;1} APN 177-15-711-0011

Case 2:15-cv-01463-RCJ-GWF Document 58 Filed 04/27/17 Page 2 of 3

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PARCEL TWO (2):

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A non-exclusive easement appurtenant to Parcel One (1) for ingress, egress and of use and
enjoyment in, to and over the Common Areas as set forth in the Declaration of Covenants,
Conditions and Restrictions and Reservation of Easements for Countryside recorded August 4,
1995 in Book 950804 as Document No. 00005 and re-recorded September 14, 1995 in Book
950914 as Document No. 00117, as the same may from time to time be amended and/or
supplemented in the Office of the County Recorder of Clark County, Nevada

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APN: 177-15-711-001

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2. Plaintiff, U.S. Bank, National Association, as Trustee for the Holders of the CSFB Mortgage

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Securities Corp., Adjustable Rate Mortgage Trust 2005-8, Adjustable Rate Mortgage-Backed Pass-

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Through Certificates Series 2005-8 (U.S. Bank) is the beneficiary of a senior deed of trust (the Deed

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of Trust) recorded against the real property at issue in this case on May 18, 2005 as Instrument No.

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20050518-0001381, which secures a loan in the original amount of $228,800.

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AKERMAN LLP

1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

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3. Countryside Homeowners' Association (the HOA) foreclosed on the property on or about

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January 6, 2012. A foreclosure deed in favor of HOA was recorded January 19, 2012 as Instrument

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No. 201201190001522.

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4. KK Real Estate Investment Fund, LLC (KKREIF) acquired the property from HOA via a
QuitClaim Deed recorded on May 7, 2013 as Instrument No. 201305070003355
IT IS HEREBY ORDERED:

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1. The Court has granted summary judgment in U.S. Bank's favor as to its first cause of action

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for quiet title and declaratory judgment. Specifically, the Court finds that Chapter 116’s opt-in notice

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scheme is facially unconstitutional under the Due Process Clause of the Fourteenth Amendment, as

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foreclosure under NRS 116 involves state action that deprives a right without adequate notice. See

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Bourne Valley Court Tr. V. Wells Fargo Bank, N.A., 832 F.3d 1154, 1160 (9th Cir. 2016). The Court

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further finds that defendants provided no evidence of actual notice in this case.

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foreclosure sale did not extinguish the Deed of Trust held by U.S. Bank. As a result, the title

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acquired by the HOA at the foreclosure sale, and the title it subsequently conveyed to KKREIF, is

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subject to the Deed of Trust.

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{41603760;1} APN 177-15-711-0012

The HOA's

Case 2:15-cv-01463-RCJ-GWF Document 58 Filed 04/27/17 Page 3 of 3

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2. The Deed of Trust remains a valid superior lien against the property and is superior to the
interest held by KKREIF;

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3. As to the remaining claims — Breach of NRS 116.1113 (Second Cause of Action); Wrongful

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Foreclosure against Countrywide Homeowners' Association (Third Cause of Action); and Injunctive

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Relief against KKREIF (Fourth Cause of Action) — these claims are dismissed without prejudice.

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Accordingly, all claims in this case are resolved.

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4. This is the final judgment of the Court, and no further order is required. Each side will bear
its own fees and costs.
DATED: This 22nd day ___, 2017
DATED: _________ of May, 2017.

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AKERMAN LLP

1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

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____________________________________

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UNITED STATES DISTRICT JUDGE

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Respectfully submitted by:
AKERMAN LLP
/s/ Vatana Lay
ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
VATANA LAY, ESQ.
Nevada Bar No. 12993
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144
Attorneys for Plaintiff
MAIER GUTIERREZ AYON

LIPSON NEILSON COLE SELTZER &
GARIN P.C.

/s/ Luis Ayon______________________
LUIS AYON, ESQ.
Nevada Bar No. 9752
8816 Spanish Ridge Avenue
Las Vegas, Nevada 89148
Attorneys for Defendant KK Real Estate
Investment Fund, LLC

/s/ David Ochoa___________________
JOSEPH GARIN, ESQ .
Nevada Bar No. 6653
KALEB D. ANDERSON, ESQ.
Nevada Bar No. 7582
DAVID OCHOA, ESQ,
Nevada Bar No. 10414
9900 Covington Cross Drive, Suite 120
Las Vegas, Nevada 89144
Attorneys for Defendant Countryside
Homeowners Association

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{41603760;1} APN 177-15-711-0013