Bank Of New York Mellon v. Highland Ranch Homeowners Association et al

Filing 89

ORDER approving ECF No. 83 Stipulation to Dismiss Defendant Gayle A. Kern Ltd dba Kern & Associates Ltd. Signed by Judge Robert C. Jones on 12/20/2019. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4
5
6
7
8

GAYLE A. KERN, ESQ.
Nevada Bar No. 1620
KAREN M. AYARBE, ESQ.
Nevada Bar No. 3358
LEACH KERN GRUCHOW
ANDERSON SONG
5421 Kietzke Lane, Ste. 200
Reno, Nevada 89511
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Gayle A. Kern, Ltd., dba Kern & Associates, Ltd.
UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
11
12
13
14

THE BANK OF NEW YORK MELLON FKA
THE BANK OF NEW YORK AS TRUSTEE
FOR THE CERTIFICATE HOLDERS CWALT,
INC. ALTERNATIVE LOAN TRUST 20053CB
MORTGAGE
PASS-THROUGH
CERTIFICATES, SERIES 2005-3CB

Case No.: 3:16-cv-00436-RCJ-WGC

STIPULATION AND ORDER TO
DISMISS DEFENDANT GAYLE
A. KERN, LTD., dba KERN &
ASSOCIATES, LTD.

15

Plaintiff,
16

v.
17
18
19
20

HIGHLAND
RANCH
HOMEOWNERS
ASSOCIATION; KERN & ASSOCIATES,
LTD.;
TBR
I,
LLC;
AIRMOTIVE
INVESTMENTS LLC; DOE INDIVIDUALS IX, inclusive, and ROE CORPORATIONS I-X,
inclusive,

21
22

Defendants.
_______________________________________/

23

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

24

Certificate Holders CWALT, Inc. Alternative Loan Trust 2005-3CB Mortgage Pass-Through

25

Certificates, Series 2005-3CB (“BoNYM”), by and through its attorneys of record, Akerman,
26
27
28

LLP; Defendant Highland Ranch Homeowners Association (the “Association”), by and through
its counsel Laxalt & Nomura; Defendant Airmotive Investments LLC (“Airmotive”), by and

1

1

through its counsel Roger P. Croteau & Associates, Ltd.; and Defendant, Gayle A. Kern, Ltd.,

2

dba Kern & Associates, Ltd. (“Kern”), by and through its counsel Leach Kern Gruchow

3

Anderson Song, HEREBY STIPULATE AND AGREE as follows:
4

1.

5
6

(“Complaint”) against Kern is DISMISSED, without prejudice, in its entirety;

7
8

That BoNYM’s Complaint ECF No. 1 and any amendments thereto

2.

That BoNYM and Kern will each bear their own attorney’s fees and costs in this

matter; and

9

3.

That in the event of an adverse judgment for damages against the Association,

10
11

any applicable statute of limitations as to Kern, which has not run as of the date of this

12

Stipulation, will be tolled through and including one (1) year after final judgment is entered in

13

this case. In the event of a judgment in favor of the Association, including, but not limited to

14

dismissal of any claims for damages against the Association as moot, the dismissal of Kern

15

will be deemed with prejudice.
16

It is FURTHER STIPULATED AND AGREED, by and between BoNYM, Kern, and

17
18

the Association, as follows:

19
20

1.

Kern and the Association affirmatively assert that pursuant to NRS

116.31164(1) 1, Kern provided legal services to the Association as its attorneys in the

21

enforcement of the Association’s governing documents related to delinquent assessments and
22
23

violations for the real property located at 6411 Samish Court, Sun Valley, Nevada 89433

24

(hereinafter the “Property”), up to and including the NRS Chapter 116 non-judicial assessment

25

lien foreclosure of the Property on or about June 20, 2014 (the “Assessment Lien Foreclosure”);

26

and;

27
1

28

At the time of the foreclosure at issue in this case, NRS 116.31164(1) provided the sale “…may be
conducted by the association, its agent or attorney, or a title insurance company or escrow company licensed to do
business in this State…” Chapter 116 was amended in 2015, and this provision is now NRS 116.31164(4).
2

1
2

2.

The parties stipulate and agree that the services provided by Kern in connection

with the Assessment Lien Foreclosure were, at all times material to BoNYM’s Complaint,

3

within the course and scope of the authority duly conferred upon Kern by the Association,
4
5
6
7
8

through its Board of Officers and Directors, to act on the Association’s behalf as its attorneys
pursuant to NRS 116.31164(1) or otherwise; and
3.

That the Association agrees to be bound by the actions of Kern as its attorneys

pursuant to NRS 116.31164(1) in the enforcement of the Association’s governing documents

9

up to and including the Association’s Assessment Lien Foreclosure of the Property.
10
11

ORDER

12

IT IS SO ORDERED this 20th day of December, 2019

13
14
15
16

__________________________
ROBERT C. JONES
District Judge

17
18
19
20
21
22
23
24
25
26
27
28

3