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Bourne Valley Court Trust v. Wells Fargo Bank

April 29, 2013

BOURNE VALLEY COURT TRUST
PLAINTIFF,
v.
WELLS FARGO BANK, N.A.; MTC FINANCIAL, INC., DBA TRUSTEE CORPS,; AND RENEE JOHNSON DEFENDANTS.



The opinion of the court was delivered by: Philip M. Pro United States District Judge

EX PARTE MOTION TO ENLARGE TIME FOR SERVICE

Plaintiff, Bourne Valley Court Trust, by and through its attorney, Michael F. Bohn, Esq., hereby moves this court, ex parte, for an order enlarging the time for service on defendant Renee Johnson, who counsel for the plaintiff has recently learned may be deceased. This motion is based upon the points and authorities contained herein, and the affidavit attached hereto.

FACTS

The complaint in this action was filed in state court on January 16, 2013. The plaintiff is the owner of the real property located at 410 Horse Point Avenue, North Las Vegas, Nevada. The plaintiff purchased the purchased from a related entity, the Horse Pointe Avenue Trust. The Horse Pointe Avenue Trust acquired the property through foreclosure sale. The foreclosure was conducted as a result of a delinquency in assessments due from the former owner, Renee Johnson, to the Parks Homeowners Association, pursuant to NRS Chapter 116.

This action was filed to obtain a judgment quieting title in the plaintiffs name. One of the named defendants is the former owner, Renee Johnson. It has been learned that Renee Johnson may be deceased.

The 120 days to serve Renee Johnson expires May 16, 2013. The plaintiff now moves for an order extending the time for service. The plaintiff may have to file a probate of Renee Johnson's estate as a creditor of the estate for the purpose of serving the estate. The plaintiff may also be required to file an amended complaint naming the estate as a named party. For these reasons, the plaintiff seeks an additional 120 days to serve the defendant.

POINTS AND AUTHORITIES

FRCP 4 (m) provides:

Time limit for Service.

If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff --must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).

The Nevada Rule, NRCP 4(i) similarly provides:

Summons: Time Limit for Service.

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion, unless the party on whose behalf such service was required files a motion to enlarge the time for service and shows good cause why such service was not made within that period. If the party on whose behalf such service was required fails to file a motion to enlarge the time for service before the 120-day service period expires, the court shall take that failure into consideration in determining ...


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