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)

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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 7785 W. Sahara Ave., Suite 200 Las Vegas, NV, 89117 (702) 475-7967; Fax: (702) 946-1345 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

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