The Bank of New York Mellon, v. Las Vegas Development Group LLC, et al
Filing
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ORDER Granting 18 Stipulation to File First Amended Complaint. Signed by Judge James C. Mahan on 12/22/2017. (Copies have been distributed pursuant to the NEF - MR)
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Andrew M. Jacobs, Esq.
Nevada Bar No. 12787
Blakeley E. Grifhth, Esq.
Nevada Bar No. 12386
Holly E. Cheong, Esq.
Nevada Bar No. 11936
SNELL & WILMER L,L.P.
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169
Telephone: (702) 7 84-5200
Facsimile: (7 02) 7 84-5252
Email: ajacobs@swlaw.com
bgriffrth@swlaw.com
hcheong@swlaw.com
Attorneys þr Plaintiff
Bank of New York Mellon
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THE BANK OF NEW YORK MELLON,
FKA THE BANK OF NEV/ YORK AS
SUCCESSOR IN INTEREST TO JP
MORGAN CHASE BANK NA AS TRUSTEE
FOR STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC. BEAR STEARNS
ALT-A TRUST 2005.9, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2OO5-
Case No. : 2: I 6-cv-00478-JCM-GV/F
STIPULATION AND ORDER TO FILE
FIRST AMENDED COMPLAINT
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Plaintiff,
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VS.
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LAS VEGAS DEVELOPMENT GROUP
LLC, aNevada limited-liability company;
ROYAL HIGHLANDS STREET AND
LANDSCAPE MAINTENANCE
CORPORATION, a Nevada non-profit
corporation; and ALESSI & KOENIG, LLC,
a Nevada limited-liability company;
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Defendants.
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Plaintiff the Bank of New York Mellon, fka The Bank of New York as Successor in
Interest to JP Morgan Chase Bank
NA
as Trustee
for Structured Asset Mortgage Investments II
Inc. Bear Steams ALT-A Trust 2005-9, Mortgage Pass-Through Certificates, Series 2005-9
4834-48',t2-7896
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("BNYM" or "Plaintiff'), and Defendants Las Vegas Development Group LLC (.'LVDG")
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Alessi
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"Parties"), by and through their respective counsel, hereby stipulate to allow Plaintiff to file
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First Amended Complaint ("FAC") as follows:
and
& Koenig, LLC ("Alessi & Koenig" and collectively with BNYM and LVDG, the
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WHEREAS, on March 4,2016, Plaintiff filedits Complaint (ECF No. 1) ("Complaint");
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WHEREAS, no party has answered the Complaint, however both LVDG and Alessi &
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Koenig have appeared in the action (ECF No. 12 and ECF No. l4);
WHEREAS, the Parties agree to allow Plaintiff to file the FAC, a copy of which is
attached hereto as Exhibit 1;
WHEREAS this request is not made for purposes of delay and is supported by good cause;
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-44834-4872-7896
Snell & Wilmer L.l.P.
thE CIETK
system.
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Andrew M. Jacobs, Esq.
Nevada Bar No. 12787
Blakeley E. Griffith, Esq.
Nevada Bar No. 12386
Holly E. Cheong, Esq.
Nevada Bar No. 11936
SNELL & V/ILMER I.I.P.
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169
Telephone: (702) 784-5200
Facsimile: (702) 7 84-5252
Email: ajacobs@swlaw.com
bgriffith@swlaw.com
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hcheong@swlaw.com
Attorneys þr Plaintiff
Bank of New York Mellon
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THE BANK OF NEW YORK MELLON,
FKA THE BANK OF NEV/ YORK AS
SUCCESSOR IN INTEREST TO JP
MORGAN CHASE BANK NA AS TRUSTEE
FOR STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC. BEAR STEARNS
ALT-A TRUST 2OO5-9, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2OO5-
Case No. : 2: 1 6-ov-00478-JCM-GWF
FIRST AMENDED COMPLAINT
9,
Plaintiff,
vs.
LAS VEGAS DEVELOPMENT GROUP
LLC, aNevada limited-liability company;
ROYAL HIGHLANDS STREET AND
LANDSCAPE MAINTENANCE
CORPORATION, a Nevada non-Profit
corporation; ALESSI & KOENIG, LLC, a
Nevada limited-liability company; and
AIRMOTIVE INVESTMENTS, LLC, A
Nevada limited-liability company,
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Defendants.
plaintiff, The Bank of New York Mellon, fka The Bank of New York as Successor in
Interest to Jp Morgan Chase Bank NA as Trustee for Structured Asset Mortgage Investments
II
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Inc. Bear Steams ALT-A Trust 2005-9, Mortgage Pass-Through Certificates, Series 2005-9
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("BNYM" or "Plaintiff'), by and through its counsel, Snell & V/ilmer
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Amended Complaint and states as follows:
PARTIES. JURISDICTION. AND VENUE
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L.L.P., submits this First
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Plaintiff BNYM is the beneficiary of a mortgage loan secured by a Deed of Trust
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recorded on or about August 5,2005, against the real property located af 10912 Fishers Island
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Street, Las Vegas, Nevada 8914I,
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2.
APN 177-31-714-009 (the "Property")'
Upon information and beliet Defendant Las Vegas Development Group, LLC
("LVDG") is a Nevada limited-liability company doing business in Clark County,
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Nevada.
Upon information and belief, Defendant Royal Highlands Street and Landscape
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Maintenance Corporation (the "HOA") is a Nevada non-profit corporation doing business in, and
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with its principal place of business in, Clark County, Nevada.
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4.
Defendant Alessi & Koenig, LLC ("Alessi") is a Nevada limited-liability company
doing business in Clark County, Nevada.
5.
Upon information and belief, Defendant Airmotive Investments, LLC
(,'Airmotive") is a Nevada limited-liability company doing business in Clark County, Nevada.
6.
This Court has jurisdiction over the counts of the present action pursuant fo 28
u.s.c. $ 1331.
7.
This Court has supplemental jurisdiction pursuant to 28 U.S.C. $ 1367(a) over
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plaintiff
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to Plaintifls claims under federal law, form part of the same case or controversy, and are derived
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from a common nucleus of operative facts.
s claims arising under the laws of the State of Nevada, because those claims are related
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8.
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within this district,
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district because a substantialpart of the events or omissions giving rise to the claim occurred in
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this judicial district, as provided in 28 U.S.C. $ 1391(bX2).
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g.
Venue is proper in this district because Defendants reside and conduct business
as provided
in 28 U.S.C. $ 1391(bX1). Alternatively, venue is proper in this
This Court has personal jurisdiction over Defendants because Defendants reside
and conduct business
within this district and the State of Nevada.
a
GENERAL ALLEGATIONS
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This case is about the constitutionality of Nevada Revised Statute ("NRS")
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16.3 I 16,
both on its face and as applied. In particular, it concerns the purported extinguishment
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of BNYM's Deed of Trust-and also a large debt owed to BNYM-by the foreclosure of a small
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homeowners' association lien on the Property, though the mortgage debt came before the lien.
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Chapter 116 of the Nevada Revised Statutes generally provides a non-judicial
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foreclosure scheme for a homeowners' association to conduct a non-judicial foreclosure where
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the unit owner fails to pay its monthly assessments.
junior to
a
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first deed of trust benef,rciary's secured interest in the property with one limited exception:
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homeowners' association lien is senior to a first deed of trust beneficiary's secured interest "to the
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extent of the assessments for common expenses based on the periodic budget adopted by the
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association pursuant
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NRS 1 16.3116 makes a homeowners' association lien for
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to NRS
116.3115 which would have become due
in the absence of
acceleration during the 9 months immediately preceding institution of an action to enforce the
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lien[.]" NRS
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13.
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16.3
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16(2Xc).
The Ninth Circuit Court
of Appeals has recently
declared certain portions of
16 of the Nevada Revised Statutes unconstitutional because the notice provisions do not
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Chapter
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meet minimum standards
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Constitution. Bourne Valley Court Trust v. l(ells Fargo Bank, N.A.,832 F.3d 1154 (9th Cir.
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2016).
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of due process under the Fourteenth Amendment to the U.S.
On or about JuIy 25, 2005, Ronald Burnside (the "Borrower") executed
a
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Promissory Note ("Note") secured by a Deed of Trust in the amount of Three Hundred Fifty-Four
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Thousand Two Hundred Fifty and 00/100 Dollars ($354,250.00) in favor of Stearns Lending, Inc.
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as the beneficiary, Mortgage Electronic Registration Systems, Inc. as the nominee for the lender
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(Stearns), and First American Title as the trustee'
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15.
The Deed
of Trust was recorded in the Offrce of the Clark County Recorder
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("Recorder's Offrce") on August 8, 2005, as Instrument Number 20050805-0004376 (the "Deed
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of Trust") and was filed against the Property'
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On or about July 25, 2005, Borrower executed a second promissory note in the
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amount of Ninety Four Thousand Four Hundred Fifty and 00/100 Dollars ($94,450.00) in favor of
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Steams Lending, Inc. which was secured by a second deed of trust
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Recorder's Office on August 8, 2005, as Instrument Number 20050805-0004377.
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filed on the Property with the
Thereafter, BNYM is informed and believes, and thereon alleges, that Borrower
stopped making payments due under the Deed of Trust and likewise stopped paying HOA dues.
18.
On or about November 5,2010, a Notice of Delinquent Assessment was recorded
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with the Recorder's Offrce as Instrument Number 201011050003208. The Notice of Delinquent
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Assessment was submitted by Alessi on behalf of the HOA for outstanding amounts owed as
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On or about January 13, 2011, a Notice of Default and Election to Sell under
201101130001575. The Notice of Default and Election to Sell under Homeowners Association
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Lien was submitted by Alessi on behalf of the HOA for outstanding amounts owed as of April 19,
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$ I ,3 14
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, 2010 , in the amount of
Homeowners Association Lien was recorded with the Recorder's Offtce as Instrument Number
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2011, in the amount of 52,149.52.
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On or about Mray 4, 2011, Mortgage Electronic Registration Systems, Inc.,
as
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nominee for Stearns Lending, Inc., transferred and assigned any beneficial interest in the Note
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and Deed of Trust to BNYM, pursuant to that certain Assignment of Deed of Trust, recorded in
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the Recorder's Office as Instrument Number 201104040002575.
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21.
On or about April 2, 2012, a Notice of Trustee's Sale was recorded with
the
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Recorder's Off,rce as Instrument Number 201204020001883. The Notice of Trustee's Sale was
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submitted by Alessi on behalf
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Delinquent Assessment and listed outstanding amounts owed as $4,622.25. The Notice of
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Trustee's Sale set adate of sale for April25,2012.
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of the HOA pursuant to the November 5, 2010 Notice of
On or about October 2, 2012, a Notice of Violation (Lien) was recorded with the
of Violation
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Recorder's Office as Instrument Number 20121002000174I. The Notice
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submitted by Alessi on behalf of the HOA for outstanding amounts owed as of September 18,
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2012, in the amount of $26,200.00.
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was
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On or about December 13,2012, a Substitution of Trustee was recorded with the
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Recorder's Offrce as Instrument Number 201212130002175 removing First American Title as the
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trustee and naming Quality Loan Service Corporation as the trustee under the Deed of Trust.
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On or about February 28,2013, a Notice of Breach and Default and of Election to
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Cause Sale of Real Property under Deed of Trust was recorded with the Recorder's Office as
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Instrument Number 201302280003226. The Notice of Breach and Default and of Election to Sell
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under Deed
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outstanding amounts owed on the Deed of Trust'
of Trust was submitted by Quality Loan
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Service Corporation as the trustee for
On or about March 18,2013, a Trustee's Deed upon Sale was recorded with the
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Recorder's Off,rce as Instrument Number 201303080003502. The Trustee's Deed upon Sale was
submitted by Alessi on behalf
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$25,100.00 at public auction on March 6,2013, and noted that the amount of unpaid debt together
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with costs was $7,896.56.
of the HOA and
showed LVDG purchased the Property for
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Recorder's Offrce as Instrument Number 20t306030003905. The Notice of Trustee's Sale was
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5442,002.26 was outstanding on the Deed of Trust.
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the
by Quality Loan Service Corporation as the trustee, noting that the amount of
27.
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On or about June 3, 2013, a Notice of Trustee's Sale was recorded with
On or about August 12,2013, a Certificate with respect to the State of Nevada
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foreclosure mediation program was recorded with the Recorder's Office as Instrument Number
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201308120001430. The Certificate was submitted by Quality Loan Service Corporation, the
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trustee.
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2g.
On or about August 19,2013, aNotice of Trustee's Sale was recorded with the
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Recorder's Office as Instrument Number 201308190002005. The Notice of Trustee's Sale was
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submitted
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$448,108.87 was outstanding on the Deed of Trust.
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by Quality Loan Service Corporation as the trustee, noting that the amount of
29.
On or about September 12,2013, an Amended Lis Pendens was recorded with the
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Recorder's Off,rce as Instrument Number 201309120001184. The Amended Lis Pendens was
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frled by LVDG.
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30.
On or about January 4, 2017, LVDG purported to convey the Property to
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Airmotive for "$1.00" by a Grant Deed recorded with the Recorder's Offtce as Instrument
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Number 20 17 0l
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31.
05
-00027 52.
BNYM is the beneficiary of the Deed of Trust, with standing and authority to
initiate this action.
32.
On or about March 6,2013, the HOA and Alessi wrongfully foreclosed against the
Property in reliance upon NRS 1 16.31 16 et seq. (the "Statute").
33.
The purported foreclosure sale under NRS 116.3116 et seq. did not extinguish
BNYM's Deed of Trust, which continues to constitute
34.
a
valid encumbrance against the Property.
Upon information and belief, the HOA and Alessi failed to give notice, andlor
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failed to give constitutionally adequate notice to BNYM of the HOA's assessment lien
required by the Supreme Court in Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983),
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giventhatNRS 116.3116etseq. onitsfaceviolatesBNYM'srightstodueprocesssecuredby
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both the Fifth and Fourteenth Amendments to the United States Constitution.
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35.
Upon information and beliet the HOA and Alessi also failed to give notice, andlor
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failed to give constitutionally adequate notice to BNYM of the HOA's Notice of Default and
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Election to Sell.
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36.
Upon information and belief, the HOA and Alessi also failed to give notice, and/or
failed to give constitutionally adequate notice to BNYM of the HOA's Notice of Sale.
37.
The HOA and Alessi failed to identify the super-priority amount claimed by the
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HOA and failed to describe the "deficiency in payment" required by NRS 116.31162(1Xb)(l) in
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the HOA's Notice of Default.
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38.
The HOA and Alessi failed to identify the super-priority amount claimed by the
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HOA and failed to describe the "deficiency in payment" required by NRS 116.31162(1XbXl) in
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the HOA's Notice of Trustee's Sale.
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39.
The HOA and Alessi failed to provide notice of the purported super-priority lien
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amount, where to pay the amount, how to pay the amount, or the consequences for the failure to
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do so in any of the recorded documents.
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40.
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The HOA and Alessi failed to identify the amount of the alleged lien that was for
late fees, interest, fines/violations, or collection fees/costs in any of the recorded documents.
41.
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The HOA and Alessi failed to identify
if
the HOA was foreclosing on the super-
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priority portion of its lien, if any, or on the sub-priority portion of its lien in any of the recorded
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documents.
42.
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43.
documents that
The HOA and Alessi failed to market, sell, or auction the Property for
a
commercially reasonable value.
44.
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in any of the recorded
PlaintifPs interest in the Property would be extinguished by the HOA foreclosure.
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The HOA and Alessi failed to specify
Defendant LVDG purports to have purchased the Property at the March 6,2013,
foreclosure sale for $25,100.00.
45.
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The Property has an approximate fair market value well in excess of
the
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$25, 1 00.00 purchase price.
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unreasonable.
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The sale and purchase of the Property was unconscionable and commercially
The HOA and Alessi failed to remit any excess proceeds from the foreclosure sale
to Wells Fargo in violation of NRS 1 16.31 16 et seq.
48.
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Concurrent with filing this action and pursuant
to NRS 30.130, BNYM
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notified the Nevada Attorney General's Offrce of this constitutional challenge to NRS
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has
et seq.
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16.31 16,
FIRST CAUSE OF ACTION
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(Declaratory Retief under Amendment V to the United States Constitution
Takings Clause - Against All Defendants)
49.
50.
BNYM repeats and re-alleges the allegations
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set forth in Paragraphs 1-48 herein.
Pursuant to 28 U.S.C. $ 2201, this Court is empowered to declare the rights and
legal relations of the parties in this matter, both generally and in relation to the foreclosure sale
and the Property.
28
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51.
The foreclosure pursuant to NRS 1 16.31 16 et seq. effected a regulatory taking of
2
BNYM's secured interest in the Property without just compensation, in violation of the Fifth
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a
Amendment to the United States Constitution which prohibits "private property befing] taken
4
without just compensation." U.S. Const. amend. V.
5
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52.
NRS 1 16.3116 et seq. on its face effects a regulatory taking of BNYM's
secured
interest in the Property without just compensation, in violation of the Fifth Amendment.
53. An actual and justiciable controversy exists between
BNYM and Defendants
regarding the purported foreclosure sale and the rights associated with the foreclosure sale.
54.
Without declaratory relief, an interpretation of NRS 116.3116 et seq., and
an
10
interpretation of the constitutional validity of NRS 116.3116 et seq., BNYM's rights and secured
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interest in the Property
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55.
will
be adversely affected.
Based upon the foregoing, BNYM requests an order declaring that the purported
foreclosure sale under NRS 1163116 et seq. did not extinguish BNYM's Deed of Trust, which
continues as a valid encumbrance against the Property.
56.
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foreclosure sale be voided and set aside because the foreclosure pursuant to NRS 1 16.31 16 et seq.
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effected
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compensation, in violation of the Fifth Amendment to the United States Constitution.
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Based upon the foregoing, BNYM requests an order declaring that the purported
regulatory taking
57.,
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in the Property without just
in an amount to be proven at trial hereof.
BNYM has been compelled to retain the undersigned counsel to represent it in this
matter and has and
will continue to incur attorney's fees and
costs.
SECOND CAUSE OF ACTION
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secured interest
BNYM has been damaged by the HOA, Alessi, LVDG, and Airmotive's conduct
as specified herein
58.
of BNYM's
(Declaratory Relief under Amendments V and XIV to the United States Constitution
Due Process Clauses - Against All Defendants)
59.
BNYM repeats and re-alleges the allegations
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set forth in Paragraphs 1-58 herein.
1
60.
Pursuant to 28 U.S.C. ç2201, this Court is empowered to declare the rights and
2
legal relations of the parties in this matter, both generally and in relation to the foreclosure sale
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and the Property.
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61.
NRS 116.3116 et seq. on its face violates BNYM's constitutional rights, in
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particular those rights to due process secured by the Fifth and Fourteenth Amendments to the
6
United States Constitution which provide that the government shall not deprive any person "of
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life, liberty, or property, without due process of law" and is thus void and unenforceable. U.S.
8
Const. amend. V, XIV.
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62.
Any purported notice provided was inadequate, insufficient, and in violation of
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BNYM's rights to due process under the Fifth and Fourteenth Amendment to the United States
Constitution.
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63. An actual and justiciable controversy exists between
BNYM and Defendants
regarding the purported foreclosure sale and the rights associated with the foreclosure sale.
64.
Without declaratory relief, an interpretation of NRS 116.3116 et seq., and
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interpretation of the constitutional validity of NRS 116.3116 et seq,, BNYM's rights and secured
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interest in the Property
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will
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be adversely affected.
Based upon the foregoing, BNYM requests an order declaring that the purported
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foreclosure sale under NRS 116.3116 et seq. did not extinguish BNYM's Deed of Trust, which
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continues as a valid encumbrance against the Property.
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66.
Based upon the foregoing, BNYM requests an order declaring that the purported
2I
foreclosure sale be voided and set aside because NRS 116.3116 et seq. on its face violates
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BNYM's rights to due process under the Fifth and Fourteenth Amendments to the United States
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Constitution.
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61.
BNYM has been damaged by Defendants' conduct as specif,red herein in
an
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amount to be proven at trial hereof. BNYM has been compelled to retain the undersigned counsel
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to represent it in this matter and has and will continue to incur attorney's fees and costs.
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THIRD CAUSE OF ACTION
(Wrongful Foreclosure against All Defendants)
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68.
69.
BNYM repeats and re-alleges the allegations
set
forth in Paragraphs 1-67 herein.
Defendant LVDG wrongfully purported
to
purchase BNYM's Property in
violation of NRS 116.3116 et seq. and common law.
5
70.
The foreclosure sale was wrongful, because the foreclosure itself was contrary to
6
law, in that:
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(a)
NRS 116.3116 et seq. on its face violates BNYM's constitutional rights, in
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particular those rights
to
due process secured
by the Fifth and Fourteenth
9
Amendments to the United States Constitution which provide that the government
10
shall not deprive any person "of life, liberty, or property, without due process of
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law" and is thus void and unenforceable. U.S. Const. amend. V, XIV.
(b)
BNYM's secured interest in the Property without just compensation, in violation
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The foreclosure pursuant to NRS 1 16.31 16 et seq. effected a regulatory taking of
13
of the Fifth Amendment to the United States Constitution which prohibits "private
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property be[ing] taken without just compensation." U.S. Const. amend. V.; and
(c)
Any purported notice provided was also inadequate, insuff,tcient, and in violation
T7
of BNYM's rights to due process under the Fifth and Fourteenth Amendments to
18
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the United States Constitution.
71.
72.
Defendant LVDG is not a bona fide purchaser of the Property.
Defendant LVDG's $25,100.00 purchase
price for the Property was
unconscionable.
22
73.
Defendant LVDG's $25,100.00 purchase price
for the Property was
not
23
commercially reasonable.
24
25
74.
Based upon the foregoing, BNYM requests an order declaring that the purported
foreclosure sale did not extinguish BNYM's Deed
of Trust, which continues as a valid
26
encumbrance against the Property.
27
28
75.
Based upon the foregoing, BNYM requests an order declaring that the purported
-10-
1
foreclosure sale be voided and set aside because neither LVDG nor Airmotive are bona fide
2
purchasers of the Property.
16.
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Based upon the foregoing, BNYM requests an order setting aside the purported
4
foreclosure sale as void because LVDG's $25,100.00 purchase price for the Property was not
5
commercially reasonable.
77.
6
Based upon the foregoing, BNYM requests an order declaring that the purported
7
foreclosure sale be voided and set aside because LVDG's $25,100.00 purchase price for the
8
Property was unconscionable.
78.
9
BNYM has been damaged by Defendants' conduct as specif,red herein, by the
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BNYM has been compelled to retain the undersigned counsel to represent it in this matter and has
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potential loss of its security interest in the Property, in an amount to be proven at trial hereof.
and
will continue to incur attorney's fees and costs.
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FOURTH CAUSE OF ACTION
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(Violation of NRS 116.1113
79.
et seq.
- Against
the HOA and Alessi)
BNYM repeats and re-alleges the allegations set forth in Paragraphs 1-78
herein,
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and in particular reasserts the allegations set forth in Paragraphs 32-41herein.
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80.
The HOA and Alessi wrongfully foreclosed upon the Property in violation of the
81.
Given the above-enumerated violations
Statute.
of the NRS 116.3116 et seq., and
16.31162(IXbXl) and NRS 116.31164(3)(c), BNYM reasserts that the sale of
20
particularly NRS
2l
the Property be voided and set aside and requests any and all damages flowing from
22
violations.
(Intentional Interference with Contract against All Defendants)
24
26
these
FIFTH CAUSE OF ACTION
23
25
1
82.
83.
BNYM repeats and re-alleges the allegations
BNYM had a valid contract with Borrower
set forth
in Paragraphs 1-81 herein.
as evidenced by the Note and Deed
of
27
Trust, which included as part of the benefit of the bargain a first priority secured interest in the
28
Property.
-11-
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84.
The HOA, Alessi, LVDG, and Airmotive knew or should have known of the
contract between BNYM and the Borrower.
85.
The HOA and Alessi knowingly interfered with the contract between BNYM and
4
the Borrower by failing to market, sell, or auction the Property for a commercially reasonable or
5
fair market value, thus evidencing intent to harm BNYM'
6
86.
LVDG and Airmotive knowingly interfered with the contract between BNYM and
7
the Borrower by wrongfully obtaining possession of the Property for an unconscionable and
8
commercially unreasonable amount, thus evidencing intent to harm BNYM.
9
g7.
LVDG and Airmotive knowingly interfered with the contract between BNYM and
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BNYM's security interest in the Property.
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the Borrower by wrongfully obtaining possession of the Property and attempting to extinguish
88.
The HOA, Alessi, LVDG, and Airmotive all lacked justif,rcation for
13
interferences, because of the many constitutional infirmities
l4
these
inNRS 116.3116 et seq, described
within this Complaint, including:
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(a)
NRS 116.3116 et seq. on its face violates BNYM's constitutional rights, in
particular those rights
to
due process secured by the Fifth and Fourteenth
t7
Amendments to the United States Constitution which provide that the government
18
shall not deprive any person "of life, liberty, or property, without due process of
r9
law" and is thus void and unenforceable. U.S. Const. amend. V, XIV.
20
(b)
The foreclosure pursuant to NRS 1 16.31 16 et seq. effected a regulatory taking of
2l
BNYM's secured interest in the Property without just compensation, in violation
22
of the United States Constitution. U.S. Const. amend. V.; and
23
(c)
Any purported notice provided was also inadequate, insufficient, and in violation
24
of BNYM's rights to due process under the Fifth and Fourteenth Amendments to
25
the United States Constitution. U.S. Const. amend. V, XIV.
26
27
89.
BNYM has been damaged by Defendants' conduct as specihed herein, by the
potential loss of its security interest in the Property, in an amount to be proven at trial hereof'
28
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1
BNYM has been compelled to retain the undersigned counsel to represent it in this matter and has
2
and
will continue to incur attorney's
fees and costs.
J
SIXTH
4
(Quiet Title
5
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7
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90.
9I.
OF'ACTION
-
Against All Defendants)
BNYM repeats and re-alleges the allegations
set
forth in Paragraphs l-89 herein.
For all of the independent reasons cited above in Causes of Action 1-5, the HOA
sale did not extinguish the senior Deed of Trust.
92.
For all of the independent reasons cited above in Causes of Action 1-5, BNYM
requests an order declaring that the purported HOA foreclosure sale did not extinguish BNYM's
Deed of Trust, which continues as a valid encumbrance against the Property.
93.
For all of the independent reasons cited above in Causes of Action 1-5, BNYM
requests an order declaring that the purported HOA foreclosure sale be voided and set aside
LVDG and Airmotive
because
94.
are not bona fide purchasers of the Property.
For all of the independent reasons cited above in Causes of Action 1-5, BNYM
15
requests an order setting aside the purported HOA foreclosure sale as void because LVDG's
T6
$25,100.00 purchase price for the Property was not commercially reasonable.
I7
18
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20
95.
For all of the independent reasons cited above in Causes of Action l-5, BNYM
requests an order declaring that the purported HOA foreclosure sale be voided and set aside
because
LVDG's $25,100.00 purchase price for the Property was unconscionable.
96.
BNYM has been damaged by Defendants' conduct as specified herein, by
the
2t
potential loss of its security interest in the Property, in an amount to be proven at trial. BNYM
22
has been compelled to retain the undersigned counsel to represent
23
will continue to incur attorney's
24
97.
it in this matter and has and
fees and costs.
Accordingly, BNYM requests that title be quieted, the cloud of title caused by
25
Defendants' alleged interests and purported claims in the Property be removed, and BNYM's
26
Deed of Trust continue as a valid encumbrance against the Property'
27
28
-1
3-
1
NOW, THEREFORE, The Bank of New York Mellon requests a judgment in its favor
&
2
against Defendants Royal Highlands Street and Landscape Maintenance Corporation, Alessi
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Koenig, LLC, Las Vegas Development Group, LLC, and Airmotive Investments, LLC as follows:
4
A.
7
B.
C.
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declaration that the Deed
of Trust is
superior
to the interest of
LVDG,
That the HOA foreclosure sale be declared void and set aside;
For consequential damages resulting from the HOA foreclosure sale;
For judgment in an amount proven
attrial in excess of $200,000;
That BNYM be awarded attorney's fees and costs, plus interest accruing thereon,
in its favor at the maximum rate allowed by law; and
13
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H.
That the Court award such other and further relief as it may deem appropriate.
15
Dated:
December
,¡jõqåÈ
cól r ÞÞør,
That title in the Property be quieted in favor of BNYM's Deed of Trust;
Airmotive, and any other defendants or claimants;
8
9
extinguished and
continues as a valid encumbrance against the Property;
5
6
A declaration in favor of BNYM that the Deed of Trust is not
aDt i
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Ë
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18
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20
,2017.
SNELL & WILMER
L.L.P.
By
Andrew M. Jacobs Q.{V Bar No. 12787)
Blakeley E. Griffrth (NV Bar No. 12386)
Holly E. Cheong (NV Bar No. 11936)
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
Attorneys for Plaintiff Bank of New York Mellon
2l
22
23
24
25
26
27
28
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