Bank of America, N.A. vs M. Diane Hutton-Potts
Filing
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ORDER the parties are ordered to file a status report within seven days addressing whether the Court has subject-matter jurisdiction. Signed by Judge Miranda M. Du on 2/6/2019. (Copies have been distributed pursuant to the NEF - KW)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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BANK OF AMERICA, N.A.,
Case No. 3:17-cv-00684-MMD-WGC
Plaintiff,
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ORDER
v.
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M. DIANE HUTTON-POTTS, SURVIVING
TRUSTEE OF THE HUTTON-POTTS
FAMILY TRUST DATED SEPTEMBER
25, 1989; SECRETARY OF HOUSING
AND URBAN DEVELOPMENT;
DEPARTMENT OF TREASURYINTERNAL REVENUE SERVICE,
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Defendants.
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This is a case involving an alleged mistake in the legal description of property
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subject to a deed of trust (“DOT”). The Court questions whether it has subject-matter
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jurisdiction over this action and orders the parties to file a status report addressing this
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issue.
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Subject-matter jurisdiction is a threshold issue that may be raised at any time—
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including by the court sua sponte—because it concerns the power of the court to hear a
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particular case. Fed. R. Civ. P. 12(b)(1), 12(h)(3). The court must dismiss a case if no
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subject-matter jurisdiction exists. Fed. R. Civ. P. 12(h)(3). Even where neither party
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contests subject-matter jurisdiction, courts are “bound to address it sua sponte if it is
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questionable.” Gilder v. PGA Tour, Inc., 936 F.2d 417, 421 (9th Cir.1991) (citing Emrich v.
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Touche Ross & Co., 846 F.2d 1190, 1194 n.2 (9th Cir. 1988)).
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The Complaint in this action was filed in Douglas County District Court on October
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20, 2017 (ECF No. 1-2 at 3), and the United States of America acting on behalf of the
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Internal Revenue Service (“IRS”) removed “under 28 U.S.C. § 1442 because the United
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States or its agency are named as defendants and under 28 U.S.C. § 1444 because the
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Complaint appears to affect real property upon which the United States holds a tax lien.”
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(ECF No. 1 at 2.) The Complaint names the IRS and the Secretary of Housing and Urban
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Development (“HUD”) as Defendants. (ECF No. 1-2 at 3-4.) The Complaint also alleges
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that the IRS holds a tax lien against the property that is the subject of this action. (Id. at
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7.)
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The first basis for jurisdiction—28 U.S.C. § 1442—may no longer apply. HUD
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disclaimed any interest in the subject property. (ECF No. 5 at 2.) And the IRS stipulated
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that BANA’s DOT was senior to its tax lien and that the United States would be excused
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from further participation in the case. (ECF No. 8 at 4-5.) The Court granted the stipulation.
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(ECF No. 9.) Accordingly, the Court questions whether there is any dispute between BANA
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and the federal Defendants to ground jurisdiction.
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The second basis for jurisdiction—28 U.S.C. § 1444—also may no longer apply in
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light of the stipulation between BANA and the IRS. The Court questions whether this action
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could affect the IRS’s tax lien.
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If neither basis for federal jurisdiction exists, then the Court’s only remaining
jurisdiction over BANA’s claims would be supplemental. See 28 U.S.C. § 1367.
Accordingly, the parties are ordered to file a status report within seven days
addressing whether the Court has subject-matter jurisdiction.
DATED THIS 6th day of February 2019.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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