Day v. Longvue Mortgage Capital Inc., et al

Filing 100

ORDER. IT IS ORDERED that 95 the Motion Execute Preliminary InjunctionBond is GRANTED. Signed by Judge Jennifer A. Dorsey on 2/2/2021. (Copies have been distributed pursuant to the NEF -cc: Finance - JQC)

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WRIGHT, FINLAY & ZAK, LLP
Darren T. Brenner, Esq.
Nevada Bar No. 8386
Ramir M. Hernandez, Esq.
Nevada Bar No. 13146
7785 W. Sahara Ave., Suite 200
Las Vegas, NV 89117
[phone]; Fax: [phone]
Attorneys for Defendant, LongVue Mortgage Capital Inc., as loan servicer for WestVue NPL
Trust II

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No.: 2:17-cv-01596-JAD-CWH

RANDOLPH DAY,

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Plaintiff,

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Order Granting Motion to Execute on
Preliminary Injunction Bond and
Directing Clerk of Court to Disburse
Bond

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vs.

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LONGVUE MORTGAGE CAPITAL INC., as
trustee for WESTVUE NPL TRUST II; FIRST
AMERICAN SOLUTIONS, LLC, and DOES
I-X and ROE CORPORATIONS I-X,
inclusive,

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Defendants.

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[ECF No. 95]

______________________________________

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Defendant LongVue Mortgage Capital Inc., as loan servicer for WestVue NPL Trust II,

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Motion to execute the Preliminary Injunction Bond [ECF No. 95] came before this Court. The

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Motion was unopposed. The Court issued a minute granting the Motion and requiting LongVue

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to file a proposed order granting the motion by 10/9/2020 for the court’s consideration and

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execution [ECF No. 96]. Good cause appearing; therefore, the Court finds and concludes as

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follows:

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FINDINGS OF FACT
THE COURT FINDS AS FOLLOWS:

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Page 1 of 4

Case 2:17-cv-01596-JAD-EJY Document 97 Filed 10/07/20 Page 2 of 4

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1.

On April 10, 2007, Plaintiff Randolph Day borrowed $900,000.00 from his own

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company, Mortgage Max Corporation, as evidenced by the Adjustable Rate Note with Interest-

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Only Period (“Note”) to refinance a loan for the Property he owned located at 32 Via Paradiso

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Street, Henderson, NV 89011.

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2.

To secure the loan, Plaintiff executed a Deed of Trust in favor of Mortgage

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Electronic Registration Systems, Inc. (“MERS”) as nominee for Mortgage Max Corporation on

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April 10, 2007. The Deed of Trust was recoded in the Clark County Recorders Office on April

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18, 2007 as Instrument No. 20070418-0003075.

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3.

On November 5, 2010, Plaintiff entered into a Loan Modification on the Note

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with Carrington Mortgage Services LLC.

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payment at $3,481.65.

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4.

The Loan Modification set Plaintiff’s monthly

On, August 8, 2012, Mortgage Electronic Registration Systems, Inc. as nominee

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for Mortgage Electronic Registrations Systems, Inc., solely as nominee for Mortgage Max

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Corporation and its successors and assigns recorded an Assignment of the Deed of Trust to

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Flagstar in the Clark County Recorders Office as Document No. 201208080003210.

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5.

On June 28, 2015, Flagstar recorded an assignment of its interest in the Deed of

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Trust to WestVue NPL Trust II (hereinafter “WestVue”) in the Clark County Recorders Office as

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Document No. 20150728-0001955.

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6.

On May 20, 2019, WestVue recorded an assignment of its interest in the Deed of

Trust to WVUE in the Clark County Recorders Office as Document No. 20190520-0002575.

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7.

LongVue is the loan servicer for both WestVue and WVUE.

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8.

claiming
On June 7, 2017, Plaintiff filed a Complaint where claimed that LongVue was not

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entitledto foreclosure on the deed of trust. In the Complaint, Plaintiff sought to enjoin the
entitle to

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LongVue’s pending foreclosure sale of the Property.1
9.

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Based on Plaintiff’s allegations, the Court entered a preliminary injunction in this

matter on June 27, 2017 enjoining the foreclosure sale, and ordered Plaintiff to post a bond of

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ECF No. 1.

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Case 2:17-cv-01596-JAD-EJY Document 97 Filed 10/07/20 Page 3 of 4

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$4,000.00. Plaintiff posted the bond on June 29, 2017.2

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10.

On June 15, 2020, the Court entered an Order Granting Summary Judgment in

Favor of Defendants and Dissolving Injunction.3
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On June 29, 2020, the Court entered a Minute Order a minute granting the Motion

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and requiting LongVue to file a proposed order granting the motion by 10/9/2020 for the court’s

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consideration and execution.4

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CONCLUSIONS OF LAW

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THE COURT CONCLUDES AS FOLLOWS:

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1.

FRCP 65(c) states, “No restraining order or preliminary injunction shall issue

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except upon the giving of security by the applicant, in such sum as the court deems proper, for

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the payment of such costs and damages as may be incurred or suffered by any party who is found

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to have been wrongfully enjoined or restrained.” “Under this rule, before a court may execute a

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bond, it must find the enjoined or restrained party was “wrongfully enjoined or restrained.””5

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“[A] party has been wrongfully enjoined within the meaning of Rule 65(c) when it turns out the

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party enjoined had the right all along to do what it was enjoined from doing.”6

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2.

As the prevailing party on summary judgment, LongVue is entitled to the full

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amount of the $4,000.00 preliminary injunction bond to reimburse it for its loss resulting from

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the injunction.
3.

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In its Summary Judgment Order, the Court held that LongVue had the standing to

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foreclose on the Property; however, LongVue could not complete foreclosure under the Deed of

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Trust because of the preliminary injunction.
4.

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The delay in the foreclosure resulted in a loss to LongVue. Pursuant to the Loan

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Modification entered into by Plaintiff and a prior loan servicer, Plaintiff’s monthly payment is

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$3,481.65.7 This stay on the appeal lasted from June 27, 2017 to June 15, 2020, the date of the

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ECF Nos. 15-16.
ECF No. 82.
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ECF. No. 84.
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Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032, 1036 (9th Cir. 1994).
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Id. (internal citations omitted).
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See ECF 95-3.
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Case 2:17-cv-01596-JAD-EJY Document 97 Filed 10/07/20 Page 4 of 4

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Summary Judgment Order and dissolution of the preliminary injunction. That is a period of 36

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months. If Plaintiff had made all of his monthly payments during the injunction period, LongVue

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would have received $125,339.40 ($3,481.65 x 36) in payments to be applied to the outstanding

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balance of the loan. Thus, the $4,000.00 bond deposited by Plaintiff with the Court represents

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barely over a month of payments and only a fraction of the amount that LongVue would

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otherwise be entitled.

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ORDER
IT IS THEREFORE ORDERED that the Motion Execute Preliminary Injunction
Bond [ECF No. 95] is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court is directed to disburse the full bond

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amount and interest payable to "WVUE 2015-1" and sent to its address at 1300 Quail Street,

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Suite 106, Newport Beach, California 92660.

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___________________________________
U.S. District Judge Jennifer A. Dorsey
Dated: February 2, 2020

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