Williams v. Bank of America, N.A., et al.

Filing 50

ORDER granting 43 Motion to Reopen Case; ORDER granting 44 Motion to Expunge Lis Pendens; Signed by Judge James C. Mahan on 6/5/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL E. WILLIAMS,

Case No. 2:16-CV-199 JCM (PAL)

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Plaintiff(s),

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ORDER

v.
BANK OF AMERICA, N.A., et al.,

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Defendant(s).

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Presently before the court is defendants Residential Credit Solutions, Inc. (“Residential”)

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and Bank of New York Mellon’s (“BONY”) (collectively “defendants”) motion to reopen case for

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the limited purpose of entering an order expunging lis pendens. (ECF No. 43).

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Also before the court is defendants’ motion to expunge lis pendens. (ECF No. 44).

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Plaintiff Michael E. Williams filed a response (ECF No. 45), to which defendants replied (ECF

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No. 48).

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I.

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On or about June 29, 2004, plaintiff purchased the property located at 1600 Eaton Drive,

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Las Vegas, Nevada, 89102 (“the property”). (ECF No. 8). To pay for the property, plaintiff

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executed a promissory note amounting to $308,000 with Countrywide Home Loan, Inc.

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(“Countrywide”) as the lender. Id. Thereafter, plaintiff entered into a deed of trust securing the

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loan. Id. Mortgage Electronic Registration Systems, Inc. (“MERS”) was named as the beneficiary

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and CTC Real Estate Services as the trustee.

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Countrywide and MERS assigned the deed of trust to BONY. Id. BONY recorded a substitution

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of trustee naming Sables LLC (“Sables”) as trustee, making it the current trustee. Id. Sables then

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notified plaintiff he was delinquent on the loan and owed over $140,000. Id.

James C. Mahan
U.S. District Judge

Facts

Id.

Bank of America, N.A. later acquired

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Thereafter, Sables opted to sell the property on behalf of BONY. Id. Plaintiff then opted

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for, and initiated, the mediation process. Id. In December 2014, the meditation concluded,

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determining that plaintiff did not qualify for loan modification. Id. Sables subsequently initiated

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foreclosure proceedings and sold the property on January 19, 2016. Id.

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On January 14, 2016, plaintiff filed a complaint in state court. (ECF No. 1). On February
1, 2016, defendants removed the case to federal court. Id.

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On July 18, 2016, the court granted defendants’ motions to dismiss. (ECF No. 35). That

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same day, the clerk entered judgment in favor of defendants. (ECF No. 36). On August 15, 2016,

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plaintiff filed a notice of appeal to the Ninth Circuit as to the court’s order granting defendants’

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motions to dismiss as well as the clerk’s entry of judgment. (ECF No. 37). On August 16, 2017,

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the Ninth Circuit affirmed the district court’s order. (ECF No. 39).

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In their instant motions, defendants now move to reopen the case for the purpose of
expunging lis pendens. (ECF Nos. 43, 44).

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Despite the court dismissal of plaintiff’s complaint, and the Ninth Circuit’s subsequent

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order affirming the district court’s order, plaintiff has not yet released his lis pendens filed on the

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property in state court on January 15, 2016. (ECF No. 43).

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II.

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Defendants argue that the court should reopen the case so as to enter an order expunging

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plaintiff’s lis pendens because the court previously dismissed plaintiff’s complaint and thus there

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are no claims pending in this action. (ECF Nos. 43, 44). Defendants assert that expunging lis

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pendens is appropriate pursuant to NRS § 14.015.

Discussion

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“The doctrine of lis pendens provides constructive notice to the world that a dispute

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involving real property is ongoing.” Weddell v. H2O, Inc., 271 P.3d 743, 751 (Nev. 2012) (citing

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Nev. Rev. Stat. § 14.010(3)). “[L]is pendens are not appropriate instruments for use in promoting

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recoveries in actions for personal or money judgments; rather, their office is to prevent the transfer

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or loss of real property which is the subject of dispute in the action that provides the basis for the

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lis pendens.” Levinson v. District Court, 857 P.2d 18, 20 (Nev. 1993).

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James C. Mahan
U.S. District Judge

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Pursuant to §14.015, a party’s ability to maintain a lis pendens depends upon that party’s

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possible future entitlement to the property. Nev. Rev. Stat. § 14.015. “A party who records the

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notice of lis pendens must establish to the satisfaction of the court either: (a) that the party who

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recorded the notice is likely to prevail in the action, or (b) that the party who recorded the notice

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has a fair chance of success on the merits in the action…” Barnett-Moore v. Fed. Home Loan

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Mortg. Corp., 2013 U.S. Dist. LEXIS 10217, at *14-15 (D. Nev. Jan. 25, 2013) (citing Nev. Rev.

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Stat. § 14.015(3)(a)-(b)).

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Here, the court granted defendants’ motion to dismiss on July 18, 2016. (ECF No. 35). The

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Ninth Circuit then affirmed the court’s order dismissing plaintiff’s complaint. (ECF No. 39).

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Further, the time for plaintiff to petition for rehearing or writ of certiorari has lapsed. (ECF No.

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43). As defendants correctly note, there are no claims currently pending in this action. Id. Thus,

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plaintiff is not likely to prevail in the action nor does plaintiff have a fair chance of success on the

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merits. Plaintiff is thus incapable of meeting either standard laid out in § 14.015(3) necessary to

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maintain lis pendens. Accordingly, the court will grant defendants’ motion to expunge lis pendens.

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III.

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Accordingly,

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

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reopen case for the limited purposed of entering an order expunging lis pendens (ECF No. 43) be,

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and the same hereby is, GRANTED.

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Conclusion

IT IS FURTHER ORDERED that defendants’ motion to expunge lis pendens (ECF No.
44) be, and the same hereby is, GRANTED.
DATED June 5, 2018.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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