Bank Of New York Mellon v. Hill et al

Filing 76

ORDER. IT IS ORDERED that the Trust and its successors and assigns' title to the property located at 732 Hardy Way #F, Mesquite, Nevada 89027, assessor's parcel no. 001-08-211-032 and more particularly described as: See Order for Details. Signed by Judge Richard F. Boulware, II on 11/15/2021. (Copies have been distributed pursuant to the NEF - JQC)

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ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
NATALIE L. WINSLOW
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 of CWALT, Inc., Alternative
Loan Trust 2005-54CB, Mortgage Pass-Through
Certificates Series 2005-54CB

AKERMAN LLP

1635 VILLAGE CENTER CIRCLE, SUITE 200
LAS VEGAS, NEVADA 89134
TEL.: [phone] – FAX: [phone]

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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 OF
CWALT, INC., ALTERNATIVE LOAN
TRUST 2005-54CB, MORTGAGE PASSTHROUGH CERTIFICATES SERIES 200554CB,

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Case No.:

2:17-cv-01916-RFB-EJY

___________
[PROPOSED]
REMAND

ORDER

FOLLOWING

Plaintiff,

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vs.

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HAROLD
HILL,
an
individual;
ENCHANTMENT
AT
SUNSET
BAY
CONDOMINIUM
ASSOCIATION;
732 HARDY WAY TRUST; and NEVADA
ASSOCIATION SERVICES, INC.,

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Defendants.

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On June 25, 2021, the Ninth Circuit entered an opinion following an appeal of this court's

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order granting defendant 732 Hardy Way Trust's (the Trust) motion for summary judgment and

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

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Certificateholders of CWALT, Inc., Alternative Loan Trust 2005-54CB, Mortgage Pass-Through

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Certificates Series 2005-54CB's (BoNYM) motion for summary judgment, ECF No. 58. The Ninth
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Circuit's opinion reversed this court's grant of summary judgment in favor of the Trust, its denial of

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summary judgment to BoNYM, and its dismissal of BoNYM's claims against Enchantment at Sunset

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Bay Condominium Association (the HOA). The Ninth Circuit remanded the matter to this court for

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proceedings consistent with its opinion.

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Following the status conference between the court and parties on November 9, 2021, the
court enters this order, which supersedes the prior summary judgment motion order at ECF No. 58:

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The court finds that a deed of trust was recorded in the Clark County Recorder's Office

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against the subject property located at 732 Hardy Way #F, Mesquite, Nevada 89027 (the subject

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property) as instrument no. 20050824-0004855 (the deed of trust).

BoNYM is the current

AKERMAN LLP

1635 VILLAGE CENTER CIRCLE, SUITE 200
LAS VEGAS, NEVADA 89134
TEL.: [phone] – FAX: [phone]

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recorded assignee of the deed of trust, as reflected by the assignment of deed of trust recorded in the

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Clark County Recorder's office against the subject property as instrument no. 201311140000798.

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The court finds that the HOA foreclosed on the subject property on September 19, 2014 (the

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HOA foreclosure sale), as reflected on the foreclosure deed recorded in the Clark County

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Recorder's Office against the subject property as instrument no. 20140922-0002777.

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The court finds that the HOA foreclosure sale is void as to BoNYM's interest in the subject

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property. The court finds the Trust and its successors and assigns' title to the subject property is

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subject to the deed of trust.

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IT IS THEREFORE ORDERED AND ADJUDGED that the Trust and its successors and

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assigns' title to the property located at 732 Hardy Way #F, Mesquite, Nevada 89027, assessor's

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parcel no. 001-08-211-032 and more particularly described as:

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PARCEL ONE (1):

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An undivided 1/10th interest as tenant(s) in common in Phase 2 of ENCHANTMENT
CONDOMINIUMS, PHASE 2 A COMMON INTEREST COMMUNITY A
PLANNED DEVELOPMENT UNIT AT MESQUITE VISTAS as shown by map
thereof on file in Book 108 of Plats, Page 5 in the Office of the County Recorder,
Clark County, Nevada.

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Excepting Therefrom all Units in all Residential Buildings and Designated Limited
Common Elements as shown on the Plat referred to above.
And Reserving Therefrom the right to possession of all those areas designated as
Limited Common Elements shown upon the Plat referred to above.

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And Further Reserving Therefrom for the benefit of Owners in future development,
non-exclusive easements on, over and under the Common Area as defined and shown
upon the Plat referred to above for ingress, egress and recreational use, subject to the
terms and as more particularly set forth in the Master Declaration of Covenants,
Conditions, Restrictions and Reservation of Easements for Mesquite Vistas
Community Association recorded December 15, 1994 in Book 941215 as Document
No. 01029 and the Supplemental Declaration of Covenants, Conditions, Restrictions
and Reservation of Easements for Enchantment Condominiums, recorded June 26,
1997 in Book 970626 as Document No. 01783 as the same may be amended and/or
supplemented in the Office of the County Recorder of Clark County, Nevada.

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PARCEL TWO (2):

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Living Unit Six Hundred Twenty Three (623) in Building Six (6) of
ENCHANTMENT CONDOMINIUMS, PHASE 2 A COMMON INTEREST
COMMUNITY A PLANNED DEVELOPMENT UNIT AT MESQUITE VISTAS
as shown by map thereof on file in Book 108 of Plats, Page 5 of Official Records in
the Office of the County Recorder of Clark County, Nevada.

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AKERMAN LLP

1635 VILLAGE CENTER CIRCLE, SUITE 200
LAS VEGAS, NEVADA 89134
TEL.: [phone] – FAX: [phone]

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PARCEL THREE (3):

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A non-exclusive easement for ingress, egress and recreational use, on, over and under
the Common Areas and Private Streets of ENCHANTMENT CONDOMINIUMS,
PHASE 1 A COMMON INTEREST COMMUNITY A PLANNED
DEVELOPMENT UNIT AT MESQUITE VISTAS as shown upon the plat referred
to above and future units, which easement is appurtenant to Parcels One (1) and
Two (2) described above.

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PARCEL FOUR (4):

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An exclusive easement appurtenant to Parcels (1) and Two (2) described above for
purposes, over areas defined and described as Limited Common Elements in the
Declaration and as shown upon the Plat referred to above

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remains encumbered by the above-referenced deed of trust.

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Because BoNYM's claims for relief against the HOA were pled in the alternative and to the

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extent that BoNYM's deed of trust was extinguished as a result of the HOA foreclosure sale, the

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court dismisses these claims.

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As to any other entities that are not parties to this litigation, the court declines to address the
effect, if any, of the void HOA foreclosure sale.

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IT IS SO ORDERED.

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15th
November
DATED this ________ day of _______________________, 2021.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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Submitted by:

AKERMAN LLP

1635 VILLAGE CENTER CIRCLE, SUITE 200
LAS VEGAS, NEVADA 89134
TEL.: [phone] – FAX: [phone]

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AKERMAN LLP

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/s/ Natalie L. Winslow
ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
NATALIE L. WINSLOW, ESQ.
Nevada Bar No. 12125
1635 Village Center Circle, Suite 200
Las Vegas, Nevada 89134

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Attorneys for The Bank of New York Mellon fka The Bank
of New York, as Trustee for the Certificateholders of
CWALT, Inc., Alternative Loan Trust 2006-OA7, Mortgage
Pass-Through Certificates, Series 2006-OA7

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Approved as to form and content by:
LEACH KERN GRUCHOW ANDERSON SONG

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/s/ Ryan D. Hastings
SEAN L. ANDERSON, ESQ.
Nevada Bar No. 7259
RYAN D. HASTINGS, ESQ.
Nevada Bar No. 12394
2525 Box Canyon Drive
Las Vegas, Nevada 89128

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Attorneys for Sunset Bay Condominium Association

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LAW OFFICES OF MICHAEL F. BOHN, ESQ., LTD

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/s/ Michael F. Bohn
MICHAEL F. BOHN, ESQ.
Nevada Bar No. 1641
2260 Corporate Circle, Suite 480
Henderson, Nevada 89074

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Attorneys for 732 Hardy Way Trust

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AKERMAN LLP

1635 VILLAGE CENTER CIRCLE, SUITE 200
LAS VEGAS, NEVADA 89134
TEL.: [phone] – FAX: [phone]

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