Bank of America N.A. v. BTK Properties LLC et al

Filing 64

ORDER Granting 61 Stipulation for Leave of Court for Parties to Amend Complaint and Counterclaims. Signed by Magistrate Judge Cam Ferenbach on 7/24/17. (Copies have been distributed pursuant to the NEF - MR)

1
2
3
4
5
6

WRIGHT, FINLAY & ZAK, LLP
Edgar C. Smith, Esq.
Nevada Bar No. 5506
Aaron D. Lancaster, Esq.
Nevada Bar No. 10115
[e-mail]
7785 W. Sahara Ave., Suite 200
Las Vegas, NV, 89117
[phone]; Fax: [phone]
Attorneys for Plaintiff, Bank of America, N.A.

7
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

8
9
10

BANK OF AMERICA, N.A.
Plaintiff,

11
12
13
14
15
16
17

Case No.: 2:16-cv-01600

vs.
CASCADE RESEARCH PARTNERS, LLC, a
Nevada limited liability company; VIEW OF
BLACK MOUNTAIN HOMEOWNERS
ASSOCIATION, a Nevada non-profit company;
RED ROCK FINANCIAL SERVICES, LLC, a
Delaware limited liability company; and DOES
I through X, and ROE CORPORATIONS I
through X, inclusive,

STIPULATION AND ORDER FOR
LEAVE OF COURT FOR PARTIES TO
AMEND COMPLAINT AND
COUNTERCLAIMS

18
19

Defendants.

20
21

Pursuant to Rule 15 of the Federal Rules of Civil Procedure and Local Rule 15-1

22

Plaintiff, Bank of America, N.A. (“BANA”), through its counsel of record, Edgar C. Smith, Esq.

23

and Aaron D. Lancaster, Esq., Cascade Research Partners, LLC (“Cascade”), through its counsel

24

of record, Michael N. Beede, Esq., View of Black Mountain Homeowners Association (“HOA”),

25

through its counsel of record Amber M. Williams, Esq., and Red Rock Financial Services, LLC,

26

through its counsel of record David R. Koch, Esq. and Steven B. Scow, Esq. submit this

27

Stipulation and Order for Leave of Court for parties to file amended pleadings, including the

28

Plaintiff filing an Amended Complaint to reassert claims against the HOA related to the

Page 1 of 4

1

completion of the NRED Mediation. A copy of the Plaintiff’s proposed amended pleading is

2

attached as Exhibit 1.

3
4
5
6
7

A. INTRODUCTION
On February 28, 2017, the Court entered Order [ECF No. 48] pursuant to HOA’s Motion
to Dismiss [ECF No. 17].

Specifically, the Order granted the HOA’s Motion to Dismiss

regarding the following causes of action: (1) injunctive relief; (2) wrongful foreclosure; (3)
negligence; (4) negligence per se; (5) breach of contract; (6) misrepresentation; and (7) tortious

8
interference with contract. All of the above causes of action, except injunctive relief, were
9
10
11
12
13

dismissed based NRS 38.310, and that these claims must first be submitted to mediation before
proceeding with a civil action.
At the time the First Amended Complaint was filed on August 2, 2016 [ECF No. 7], and
at the time all of the briefing had been completed regarding the HOA’s Motion to Dismiss [ECF

14

No. 17] the NRED Mediation had not been completed. Since the briefing relating to the HOA’s

15

Motion to Dismiss was before the Court the parties have participated in an NRED Mediation.

16

The NRED Mediation was completed on January 4, 2017. The mediation was unsuccessful as

17

no agreement was reached at the mediation. BANA therefore requests leave to amend to reassert

18

causes of action against the HOA based on the completion of the NRED Mediation.

19

B. STANDARD FOR LEAVE TO AMEND

20

FRCP 15 permits a party to amend its pleading by leave of court and states that “the court

21

should freely give leave when justice so requires.” FRCP 15(a)(2). The Ninth Circuit has

22

approved of amendment in similar situations, stating that “a court must be guided by the

23
24
25
26
27

underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or
technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir.1981); Lopez v. Smith, 203
F.3d 1122, 1127 (9th Cir.2000). Although district courts have discretion regarding whether to
grant leave to amend, such leave should be granted with “extreme liberty.” Morongo Band of
Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990).

28

Page 2 of 4

1

C. LEGAL SUPPORT

2

Applying these well established principles, the Court should grant parties’ request for

3

leave to amend. Since filing the First Amended Complaint, the filing of the HOA’s Motion to

4

Dismiss, the parties have participated in an NRED Mediation. The Real Estate Division is ill-

5
6
7
8

equipped to handle the onslaught of filings for mediation resultant from HOA litigation, resulting
in substantial delay. The mediation is not complete and no agreement was reached at the
mediation.
The Plaintiff’s proposed Second Amended Complaint attached as Exhibit 1 reasserts

9
those causes of action against the HOA that were dismissed pursuant to the Order {ECF No. 48],
10
11
12
13
14

as BANA is challenging the validity of the lien sale conducted by the HOA and its agents. The
parties therefore request that the Court grant its request for leave to file amended pleadings.
Allegations in the original complaint were also modified to make the allegations consistent with
the proposed changes.

15

WRIGHT FINLAY & ZAK

THE LAW OFFICE OF MIKE BEEDE, PLLC

16

By: /s/ Aaron D. Lancaster, Esq.
Aaron D Lancaster, Esq.
7785 W. Sahara Ave, Suite 200
Las Vegas, NV 89117
Plaintiff, Bank of America, N.A.

By: /s/
Michael N. Beede, Esq.
2470 St. Rose Parkway, Suite 201
Las Vegas, NV 89074
Attorneys for Defendant Cascade Research
Partners, LLC

17
18
19
20
21
22
23
24
25
26
27

LIPSON, NEILSON, COLE, SELTZER &
GARIN, P.C.

KOCH & SCOW LLC

/s/
Amber M. Williams, Esq.
9900 Covington Cross Drive, Suite 120
Las Vegas, NV 89144
Attorney for Defendant View of Black
Mountain Homeowners Association

By: /s/
David R. Koch, Esq.
Steven B. Scow, Esq.
Brody R. Wright, Esq.
11500 South Eastern Avenue, Suite 210
Henderson, NV 89052
Attorneys for Red Rock Financial Services,
LLC

28

Page 3 of 4

ORDER

1
2
3
4
5

IT IS SO ORDERED.
24th
July
Dated this ___ day of ____________, 2017.
_________________________________________
UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Page 4 of 4