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Citimortgage, Inc. v. Alessi & Koenig, LLC

United States District Court, D. Nevada

January 8, 2015

CITIMORTGAGE, INC., Plaintiff,
v.
ALESSI & KOENIG, LLC, et al., Defendants.

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is plaintiff CitiMortgage, Inc.'s (hereinafter "plaintiff") motion for summary judgment. (Doc. # 32). Defendants Solana Unit-Owners' Association and Alessi & Koenig, LLC (hereinafter "defendants") did not file a response, and the deadline to respond has now passed.

Also before the court is plaintiff's request for judicial notice. (Doc. # 33).

I. Background

On or about May 9, 2008, Raydalee B. Renaud ("Renaud") opened a revolving line of credit in the amount of $99, 000.00, with CitiBank, N.A. (Doc. # 1). This line of credit was secured by a deed of trust on Renaud's property. (Doc. # 1).

Plaintiff is the beneficiary of the deed of trust. (Doc. # 32.) On May 19, 2008, plaintiff recorded the deed of trust. (Doc. # 1.) On November 7, 2012, defendant Solana Unit-Owners' Association ("Solana") recorded a notice of delinquent assessment against the property. (Doc. # 1.)

Defendant Alessi & Koenig, LLC ("Alessi & Koenig") acts as trustee for Solana. (Doc. # 1). On January 31, 2013, Alessi & Koenig recorded a notice of default and election to sell under homeowners association ("HOA") lien. (Doc. # 1.) The notice provided that as of December 27, 2012, the amount due on the property was $3, 631.00. (Doc. # 32.)

On August 30, 2013, Alessi & Koenig recorded a notice of trustee's sale against the property. (Doc. # 1.) The notice set the property for sale on September 25, 2013. (Doc. # 1.)

On September 20, 2013, plaintiff contacted Alessi & Koenig by email requesting a payoff demand for the nine month superpriority portion of the HOA lien. Plaintiff also requested that the property sale be postponed. (Doc. # 1).

Alessi & Koenig responded providing a payoff demand for the total amount due to the HOA on the property, $6, 930.60. (Doc. # 1.) Alessi & Koenig represented that this request was good through the day before the sale. It also stated that it was unable to provide a payoff demand for the superpriority amount because a foreclosure had not yet occurred on the property. (Doc. # 1.)

On September 26, 2013, plaintiff contacted Alessi & Koenig requesting an updated payoff demand, as the earlier demand had expired. (Doc. # 1.) Plaintiff stated that it was contemplating paying off the account to release the HOA lien. Plaintiff also asked whether Alessi & Koenig would waive the fees and costs assessed on the demand breakdown, pursuant to its regular practice. (Doc. # 1.)

Also on September 26, 2013, Alessi & Koenig responded that the sale had been postponed to October 30, 2013. On October 23, 2013, Alessi & Koenig sent a reduced demand for $6, 689.60, good through October 29, 2013. (Doc. # 1.) However, it still did not provide a payoff demand for the superpriority amount.

On October 28, 2013, plaintiff filed a complaint for declaratory relief in the instant case. (Doc. # 1.) Plaintiff sought a judicial declaration that its interest would not be affected by an HOA foreclosure sale. (Doc. # 1.)

Alternatively, plaintiff sought a declaratory that Solana's superpriority lien was limited to nine months of assessments. Plaintiff asked the court to declare that its payment of this amount would satisfy the superpriority portion of the lien. (Doc. # 1.)

On October 31, 2013, Alessi & Koenig informed plaintiff that the sale was postponed to December 4, 2013, to allow time for a payoff to be received. (Doc. # 32.) On November 26, 2013, plaintiff sent a proposed settlement check to Alessi & Koenig in the amount of $1, 845.00. (Doc. # 32.)

Plaintiff stated that it would revoke its offer if Alessi & Koenig did not accept it by close of business on December 2, 2013. Plaintiff also asked defendants to execute a notice of partial release of lien indicating that the superpriority lien had been satisfied and released. (Doc. # 32.)

Defendants accepted the payment and credited it toward the total amount of the lien. However, they refused to acknowledge that this credit satisfied the superpriority portion of the lien. (Doc. # 32.) On December 4, 2013, Solana held a foreclosure sale on the property. (Doc. # 32.) However, no bids were received, and the property was not sold. (Doc. # 32.)

Plaintiff now moves for summary judgment and seeks a declaration that its payment of $1, 845.00, satisfied the superpriority ...


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