Ditech Financial LLC et al v. Park Avenue Homeowners' Association et al

Filing 47

ORDER. The 38 Motion for Summary Judgment is DENIED as moot. ORDER Granting 46 Stipulation. See Order for Details. Signed by Judge Jennifer A. Dorsey on 12/4/2019. (Copies have been distributed pursuant to the NEF - JQC)

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Case 2:16-cv-03021-JAD-NJK Document 46 Filed 12/03/19 Page 1 of 5 1 2 3 4 5 6 7 8 9 ARIEL E. STERN, ESQ. Nevada Bar No. 8276 SCOTT R. LACHMAN, ESQ. Nevada Bar No. 12016 Akerman LLP 1635 Village Center Circle, Suite 200 Las Vegas, NV 89134 Telephone: (702) 634-5000 Facsimile: (702) 380-8572 Email: ariel.stern@akerman.com Email: scott.lachman@akerman.com Attorneys for Ditech Financial LLC fka Green Tree Servicing, LLC and Federal National Mortgage Association AKERMAN LLP 1635 VILLAGE CENTER CIRCLE, SUITE 200 LAS VEGAS, NEVADA 89134 TEL.: (702) 634-5000 – FAX: (702) 380-8572 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 13 14 DITECH FINANCIAL LLC f/k/a GREEN TREE SERVICING, LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION, 15 16 Plaintiffs, 19 ECF Nos. 38, 46 PARK AVENUE HOMEOWNERS ASSOCIATION; and RED ROCK FINANCIAL SERVICES, LLC, Defendants. 20 21 STIPULATION AND ORDER OF FINAL JUDGMENT CONFIRMING VALIDITY OF DEED OF TRUST v. 17 18 Case No.: 2:16-cv-03021-JAD-NJK AND ALL RELATED CLAIMS 22 23 Plaintiffs Ditech Financial LLC f/k/a Green Tree Servicing, LLC (Ditech) and Federal 24 National Mortgage Association (Fannie Mae), defendant and cross-claimant Park Avenue 25 Homeowners Association (Park Avenue), and defendant and cross-defendant Red Rock Financial 26 Services, LLC (Red Rock), through their counsel of record, stipulate as follows: 1. 27 28 This matter relates to real property at located 87 East Agate Avenue, #206, Las Vegas, Nevada, APN 177-21-215-092 (the Property). The Property is more specifically described as: 50598304;1 50986172;1 Case 2:16-cv-03021-JAD-NJK Document 46 Filed 12/03/19 Page 2 of 5 1 2 3 4 5 6 7 PARCEL I: ONE (1) ALLOCATED INTEREST (EXCEPT ASSOCIATION PROPERTY) AS TENANT IN COMMON IN THE COMMON ELEMENTS WITHIN PHASE 1 OF PARK AVENUE CONDOMINIUMS UNIT I AS SHOWN BY MAP THEREOF ON FILE IN BOOK 99 OF PLATS, PAGE 24, IN THE OFFICE OF THE COUNTY RECORDER OF CLARK COUNTY, NEVADA, AS PHASES ARE ANNEXED, THE ALLOCATED INTEREST FOR EACH UNIT WILL BE A FRACTION, THE NUMERATOR OF WHICH WILL BE ONE (1), AND THE DENOMINATOR, OF WHICH WILL BE THE TOTAL OF ALL UNITS IN ALL PHASES THAT BECOME SUBJECT TO THE DECLARATION. EXCEPTING THEREFROM ALL LIVING UNITS AND ASSOCIATION PROPERTY IN PHASE 1 OF PARK AVENUE CONDOMINIUMS UNIT 1 8 9 AKERMAN LLP 1635 VILLAGE CENTER CIRCLE, SUITE 200 LAS VEGAS, NEVADA 89134 TEL.: (702) 634-5000 – FAX: (702) 380-8572 10 11 12 13 14 15 AND RESERVING THEREFROM THE RIGHT TO POSSESSION OF ALL THOSE AREAS DESIGNATED AS LIMITED COMMON ELEMENTS AS SHOWN UPON THE PLAT REFERRED TO ABOVE. AND FURTHER RESERVING THEREFROM FOR THE BENEFIT OF THE OWNERS OF CONDOMINIUMS IN SUBSEQUENT PHASES, NON-EXCLUSIVE EASEMENT ON OVER AND ACROSS THE ASSOCIATION AREAS AS DEFINED AND SHOWN UPON THE PLAT REFERRED TO ABOVE FOR INGRESS, EGRESS AND RECREATIONAL USE, SUBJECT TO THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR PARK AVENUE CONDOMINIUMS A COMMON INTEREST CONDOMINIUM DEVELOPMENT RECORDED AUGUST 3, 2001 IN BOOK 20010803 AS DOCUMENT NO 00962 AS THE SAME MAY FROM TIME TO TIME BE AMENDED AND/OR SUPPLEMENTED, TO WHICH REFERENCE IS HEREAFTER MADE. 16 17 PARCEL II: 19 LIVING UNIT 206 IN BUILDING 19 OF PARK AVENUE CONDOMINIUMS UNIT 1 AS SHOWN BY MAP THEREOF ON FILE IN BOOK 99 OF PLATS, PAGE 24 IN THE OFFICE OF THE COUNTY RECORDER OR CLARK COUNTY, NEVADA 20 PARCEL III: 21 23 THE EXCLUSIVE RIGHT TO USE, POSSESSION AND OCCUPANCY OF THOSE PORTIONS OF THE LIMITED COMMON ELEMENTS DESCRIBED IN SECTION 2.3 OF THE COVENANTS, CONDITIONS, AND RESTRICTIONS, AND DEPICTED AS PARKING SPACE P130, WHICH ARE APPURTENANT TO AND FOR THE EXCLUSIVE USE OF PARCEL TWO. 24 PARCEL IV: 25 A NON-EXCLUSIVE EASEMENT ON AND OVER THE ASSOCIATION PROPERTY (AS DEFINED IN THE DECLARATION) FOR ACCESS, USE, OCCUPANCY, ENJOYMENT, INGRESS, EGRESS AND USE OF THE AMENITIES LOCATED THEREON, SUBJECT TO THE TERMS AND PROVISION OF THE DECLARATIONS. THIS EASEMENT IS APPURTENANT TO PARCEL ONE (1) TWO (2) AND THREE (3) ABOVE DESCRIBED. 18 22 26 27 28 2 APN 177-21-215-092 50986172;1 Case 2:16-cv-03021-JAD-NJK Document 46 Filed 12/03/19 Page 3 of 5 1 2. Ditech, on Fannie Mae's behalf, is the beneficiary of record of a Deed of Trust that 2 encumbers the Property and was recorded on August 27, 2004, as Instrument No. 20040827-0004911 3 (the Deed of Trust). 4 3. On July 23, 2012, Park Avenue recorded a Foreclosure Deed as Instrument No. 5 201207230001659 (the HOA Foreclosure Deed), reflecting that Park Avenue purchased the Property 6 at a foreclosure sale of the Property held on July 17, 2012 (the HOA Sale). 7 4. Park Avenue has not transferred its interest and is currently the title holder of record. 8 5. On December 29, 2016, Ditech and Fannie Mae initiated an action for quiet title and 9 AKERMAN LLP 1635 VILLAGE CENTER CIRCLE, SUITE 200 LAS VEGAS, NEVADA 89134 TEL.: (702) 634-5000 – FAX: (702) 380-8572 10 damages against Park Avenue and Red Rock in the United States District Court, District of Nevada, Case No. 2:16-cv-023021-JAD-NJK. 11 12 6. Ditech, Fannie Mae, and Park Avenue have entered into a settlement agreement in which Ditech and Fannie Mae have resolved all claims against Park Avenue and Red Rock. 13 7. The parties have agreed as part of their settlement agreement that the Deed of Trust 14 survived and was not extinguished in any capacity by the HOA Sale or the recording of the HOA 15 Foreclosure Deed. The Deed of Trust remains a valid encumbrance against the Property following the 16 recording of the HOA Foreclosure Deed, and Park Avenue's interest in the Property is subject to the 17 Deed of Trust. This stipulation is made for purposes of this action only and is not a waiver by any 18 Party of its legal position in any other case or an admission of liability in this or any other action. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 3 APN 177-21-215-092 50986172;1 Case 2:16-cv-03021-JAD-NJK Document 46 Filed 12/03/19 Page 4 of 5 1 8. Based on this stipulation, Ditech stipulates to dismissing its breach of NRS 116.1113 2 and wrongful foreclosure claims against Park Avenue and Red Rock, and Park Avenue stipulates to 3 dismissing its cross-claims against Red Rock, with prejudice. 4 DATED this 3rd day of December, 2019. 5 6 AKERMAN LLP LEACH KERN GRUCHOW ANDERSON SONG 7 /s/ Scott R. Lachman ARIEL E. STERN, ESQ. Nevada Bar No. 8276 SCOTT R. LACHMAN, ESQ. Nevada Bar No. 12016 1635 Village Center Circle, Suite 200 Las Vegas, NV 89134 /s/ J. Tyler King SEAN L. ANDERSON, ESQ. Nevada Bar No. 7259 J. TYLER KING, ESQ. Nevada Bar No. 14895 2525 Box Canyon Drive Las Vegas, NV 89128 Attorneys for Ditech Financial LLC f/k/a Green Tree Servicing, LLC and Federal National Mortgage Association Attorneys for Park Avenue Homeowners' Association 8 9 AKERMAN LLP 1635 VILLAGE CENTER CIRCLE, SUITE 200 LAS VEGAS, NEVADA 89134 TEL.: (702) 634-5000 – FAX: (702) 380-8572 10 11 12 13 14 15 16 17 18 19 20 KOCH & SCOW LLC /s/ David R. Koch DAVID R. KOCH, ESQ. Nevada Bar No. 8830 STEVEN B. SCOW, ESQ. Nevada Bar No. 9906 BRODY R. WIGHT, ESQ. Nevada Bar No. 13615 11500 S. Eastern Avenue, Suite 210 Henderson, NV 89052 21 Attorneys for Red Rock Financial Services, LLC 22 23 24 25 26 27 28 4 APN 177-21-215-092 50986172;1 Case 2:16-cv-03021-JAD-NJK Document 46 Filed 12/03/19 Page 5 of 5 1 ORDER 2 stipulation [46] Based on the above stipulation between plaintiffs Ditech Financial LLC f/k/a Green Tree 3 Servicing, LLC (Ditech) and Federal National Mortgage Association (Fannie Mae), defendant and 4 cross-claimant Park Avenue Homeowners Association (Park Avenue), and defendant and cross- 5 defendant Red Rock Financial Services, LLC (Red Rock), the Parties' agreement, and good cause 6 appearing therefore, Nevada against the real property located at 87 East Agate Avenue, #206, Las Vegas, Nevada, APN 9 177-21-215-092 (the Property) on August 27, 2004, as Instrument No. 20040827-0004911 was not 10 AKERMAN LLP IT IS ORDERED that the Deed of Trust recorded in the Official Records of Clark County, 8 1635 VILLAGE CENTER CIRCLE, SUITE 200 LAS VEGAS, NEVADA 89134 TEL.: (702) 634-5000 – FAX: (702) 380-8572 7 extinguished, impaired, or otherwise affected by the foreclosure sale conducted by Park Avenue on 11 July 17, 2012, or the recording of the Foreclosure Deed in the Official Records of Clark County, 12 Nevada on July 23, 2012, as Instrument No. 201207230001659, reflecting that Park Avenue purchased 13 the Property at the HOA Foreclosure Sale. Park Avenue's interest in the Property is subject to the 14 Deed of Trust. 15 IT IS FURTHER ORDERED that Ditech and Fannie Mae shall be entitled to record this 16 STIPULATION AND ORDER OF FINAL JUDGMENT CONFIRMING VALIDITY OF DEED OF 17 TRUST in the Official Records of Clark County, Nevada in accordance with the rules of the Recorder's 18 Office. This Order shall be only be recorded against the Property and shall not be recorded against 19 Park Avenue. 20 IT IS FURTHER ORDERED Ditech's breach of NRS 116.1113 and wrongful foreclosure 21 claims against Park Avenue and Red Rock, and Park Avenue's cross-claims against Red Rock, are 22 dismissed with prejudice. 23 24 25 26 IT IS FURTHER ORDERED that this order constitutes the final judgment of this Court, resolving all claims in this case with prejudice, each party to bear its own fees and costs. The Motion for Summaryof ____________________,DENIED as moot, and the Clerk of Court DATED this _____ day Judgment [ECF No. 38] is 2019. is directed to CLOSE THIS CASE. _________________________________ _________________ __ __ _ _ _ _ DISTRICT COURTct Judge Jennifer A. D JUDGE Jennifer A Dorsey U.S. District Judg Judge fe Case No. Dated: December 4, 2019 2:16-cv-023021-JAD-NJK 27 28 5 APN 177-21-215-092 50986172;1

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