Bank Of New York Mellon v. Church et al

Filing 66

ORDER re 62 Minutes of Proceedings. IT IS ORDERED that Plaintiff Bank of New York Mellon's 51 Motion for Summary Judgment is GRANTED as to the quiet title claim only. IT IS FURTHER ORDERED that Defendant SFR Investments Pool 1 LLC&# 039;s 49 Motion for Partial Summary Judgment is DENIED. IT IS FURTHER ORDERED that Defendant Silverstone Ranch Community Association's 52 Motion for Summary Judgment is DENIED as the claims for which Silverstone sought summary judgment have been dismissed. Signed by Judge Richard F. Boulware, II on 12/26/2019. (Copies have been distributed pursuant to the NEF - ADR) Modified docket text on 12/26/2019 (MMM).

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DARREN T. BRENNER, ESQ.
Nevada Bar No. 8386
NATALIE L. WINSLOW, ESQ.
Nevada Bar No. 12125
AKERMAN LLP
1635 Village Center Circle, Suite 200
Las Vegas, NV 89134
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for The Bank of New York Mellon fka
The Bank of New York, as Trustee for the
Certificateholders CWALT, Inc., Alternative
Loan Trust 2006-4CB, Mortgage Pass-Through
Certificates, Series 2006-4CB and Mortgage
Electronic Registration Systems, Inc., as
nominee for BRS Citizens, N.A.

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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 NEW YORK, AS TRUSTEE
FOR
THE
CERTIFICATEHOLDERS
CWALT, INC., ALTERNATIVE LOAN
TRUST 2006-4CB, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 20064CB,
Plaintiff,

DENYING SFR INVESTMENTS POOL 1,
LLC'S
MOTION FOR
PARTIAL
SUMMARY JUDGMENT

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vs.

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MICHELLE
R.
CHURCH;
SFR
INVESTMENTS POOL 1, LLC; HAMPTON &
HAMPTON
COLLECTIONS
LLC;
SILVERSTONE RANCH COMMUNITY
ASSOCIATION; DOE INDIVIDUALS I-X,
inclusive, and ROE CORPORATIONS I-X,
inclusive,

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[PROPOSED]
ORDER
GRANTING
PLAINTIFF'S
MOTION
FOR
SUMMARY JUDGMENT IN PART
AND

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Case No.: 2:17-cv-00238-RFB-NJK

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Defendants.

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AND
DENYING SILVERSTONE RANCH
COMMUNITY
ASSOCIATION'S
MOTION FOR SUMMARY JUDGMENT

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SILVERSTONE RANCH COMMUNITY
ASSOCIATION,
Cross-Claimant,
vs.
HAMPTON & HAMPTON COLLECTIONS
LLC, a Professional Corporation,
Cross-Defendant.

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SFR INVESTMENTS POOL 1, LLC,

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Counter/Cross-Claimant,
vs.

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THE BANK OF NEW YORK MELLON FKA
THE BANK OF NEW YORK, AS TRUSTEE
FOR
THE
CERTIFICATEHOLDERS
CWALT, INC., ALTERNATIVE LOAN
TRUST 2006-4CB, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 20064CB;
MORTGAGE
ELECTRONIC
REGISTRATION SYSTEMS, INC., AS
NOMINEE FOR BRS CITIZENS, N.A.;
MICHELLE R. CHURCH, an individual,
Counter/Cross-Defendants.

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The Bank of New York Mellon fka The Bank of New York, as Trustee for the

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Certificateholders CWALT, Inc., Alternative Loan Trust 2006-4CB, Mortgage Pass-Through

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Certificates, Series 2006-4CB (BNYM) submits this proposed order following the court's minute

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order granting BNYM's summary judgment motion as to BNYM's quiet title/declaratory relief claim

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only [ECF No. 51], denying SFR Investments Pool 1, LLC and Silverstone Ranch Community

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Association's (HOA) summary judgment motions, and entering judgment in favor of BNYM, as

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well as entering default judgment as to Michelle R. Church, in favor of SFR. ECF Nos. 62, 63.
FINDINGS OF FACT

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Michelle R. Church and Irvin R. Church purchased property located at 8105 Bay Dunes

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Street, Las Vegas, Nevada 89131-4346; Parcel No. 125-10-817-008 (“Property”) in 2005. The

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Property was subject to the CC&Rs of the HOA. On September 26, 2012, a grant bargain sale deed
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transferring title of the Property from Michelle R. Church and Irvin R. Church to Michelle R.

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Church, a married woman as her sole and separate property, was recorded on the Property as

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Instrument No. 201209260004763.

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The Churches borrowed $400,000.00 to finance their purchase of the Property, which lender

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Countrywide Home Loans, Inc. secured with a deed of trust recorded against the Property.

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Mortgage Electronic Registration Systems, Inc. (MERS) was listed as beneficiary under the deed

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of trust, solely as nominee for the lender and the lender's successors and assigns. MERS assigned

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the deed of trust to BNYM on August 20, 2009, and the assignment was recorded on September 15,

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2009.

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The HOA, through its agent Hampton & Hampton, P.C., recorded a notice of delinquent

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assessment lien against the Property on October 23, 2009, followed by a second notice of delinquent

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assessment lien on October 6, 2010, a notice of default and election to sell on November 18, 2010,

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a second notice of default and election to sell on August 26, 2013, and a notice of trustee's sale

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against the Property on July 25, 2014.

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Prior to the HOA foreclosure sale, then-servicer Bank of America, through its counsel at

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Miles, Bauer, Bergstrom & Winters, LLP, requested from the HOA a calculation of the superpriority

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portion of the HOA's lien on December 20, 2010.

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On or about December 30, 2010, Hampton sent Bank of America a facsimile, stating that the

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amount due for nine months of assessments on the above-referenced Property was $2,025.72. On

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January 21, 2011, Miles Bauer tendered that amount to the HOA, which the HOA accepted.
The HOA foreclosed on the property on September 10, 2014. SFR purchased the Property

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for $90,000.00.
CONCLUSIONS OF LAW

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BNYM's claims are not time-barred. The court incorporates by reference its reasoning as

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set forth in Carrington Mortgage Services, LLC v. Tapestry at Town Center Homeowners Assoc.,

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381 F.Supp.3d 1289 (D. Nev. 2019). As the foreclosure sale in this case occurred on September 10,

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2014, and the complaint was filed on January 27, 2017, none of BNYM's claims are time barred.

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...
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The court further finds that Bank of America, through Miles Bauer, paid the superpriority

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portion of the HOA's lien prior to the HOA's foreclosure sale, as Miles Bauer tendered payment of

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$2,025.72 to the HOA, through Hampton, on January 21, 2011. This payment of the superpriority

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lien operated to preserve BNYM's deed of trust. The court incorporates by reference its reasoning

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as set forth in The Bank of New York Mellon v. Mission del Rey Homeowners Assoc. et al., No.

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2:17cv-02173-RFB-EJY, 2019 WL 4777305 (D. Nev. Sept. 30, 2019).

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The court grants summary judgment in favor of BNYM as to its claim for quiet

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title/declaratory relief. The court denies SFR's summary judgment motion. The court denies the

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HOA's summary judgment motion as the claims for which the HOA sought summary judgment have

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been dismissed. The court's determination that the superpriority tender in this case preserved

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BNYM's deed of trust resolves all outstanding issues and claims as asserted by the parties to this

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action. The court dismisses all remaining claims and counterclaims accordingly as it finds the issue

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of tender to be dispositive in this case.

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Accordingly, the interest of SFR Investments Pool 1, LLC or its successors and assigns in

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the Property is subject to BNYM's deed of trust, recorded against the Property with the Clark County

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Recorder as instrument no. 2005118-0004990. BNYM's deed of trust, as referenced in this

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paragraph, remains a valid and existing encumbrance on the property.
The lis pendens recorded against the property with the Clark County Recorder as instrument

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nos. 201702010001237 and 201703150001541 are expunged.
The certificate of cash deposit, at ECF No. 16, shall be returned to the legal owner, along

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with all accrued interest.

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The Court also grants default judgment against Michelle R. Church and in favor of SFR. The

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nonjudicial foreclosure sale conducted on September 10, 2014 extinguished Church’s interest in the

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Property. As a result, Michelle R. Church, her successors or assigns, has no interest or property right

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related to the real property located at 8105 Bay Dunes Street, Las Vegas, Nevada 89131-4346;

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Parcel No. 125-10-817-008.

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ORDER

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IT IS SO ORDERED.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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December 26, 2019
DATED

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Submitted by:

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AKERMAN LLP

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/s/ Natalie L. Winslow
NATALIE L. WINSLOW, ESQ., NV Bar #12125
1635 Village Center Circle, Suite 200
Las Vegas, Nevada 89134
Attorneys for The Bank of New York Mellon
fka The Bank of New York, as Trustee for the
Certificateholders CWALT, Inc., Alternative
Loan Trust 2006-4CB, Mortgage PassThrough Certificates, Series 2006-4CB and
Mortgage Electronic Registration Systems,
Inc., as nominee for BRS Citizens, N.A.

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Reviewed By:
KIM GILBERT EBRON
/s/ Jason G. Martinez
JASON G. MARTINEZ, ESQ., NV Bar #13375
7625 Dean Martin Drive, Suite 110
Las Vegas, Nevada 89139
Attorneys for SFR Investments Pool 1, LLC

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LEACH KERN GRUCHOW ANDERSON SONG

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/s/ Ryan W. Reed
RYAN W. REED, ESQ., NV Bar #11695
2525 Box Canyon Drive
Las Vegas, Nevada 89128
Attorneys for Silverstone Ranch Community Association

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