United States District Court, D. Nevada
ABSOLUTE BUSINESS SOLUTIONS, INC., a Delaware Corporation, Plaintiff,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEM, an Illinois Corporation; BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP, a Texas Corporation; IRMA MENDEZ, an individual; FEDERAL NATIONAL MORTGAGE ASSOCIATION, a government sponsored enterprise; DOES 1 through 25 inclusive; and ROE CORPORATIONS, 1 through X, inclusive, Defendants. ALESSI & KOENIG, LLC, a Nevada Limited Liability Company, Plaintiff in Intervention,
v.
IRMA MENDEZ, an Individual; JAMES M. McCORD, an Individual; BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP, FKA COUNTRYWIDE HOME LOANS SERVICING, LP, a national banking association; CROSSBOX, an unknown entity; FEDERAL NATIONAL MORTGAGE ASSOCIATION, a government sponsored enterprise; DOE INDIVIDUALS I through X, inclusive; and ROE CORPORATIONS, I through X, inclusive, Defendants in Intervention. And FEDERAL HOUSING FINANCE AGENCY, as Conservator or Federal National Mortgage Association, Intervenor. FEDERAL NATIONAL MORTGAGE ASSOCIATION; and FEDERAL HOUSING FINANCE AGENCY, as Conservator of Federal National Mortgage Association, Counterclaimants,
v.
ABSOLUTE BUSINESS SOLUTIONS, INC., Counter-Defendant.
WRIGHT, FINLAY & ZAK, LLP Christina V. Miller, Esq. Dana
Jonathon Nitz, Esq. (SBN 0050) Attorneys for Federal National
Mortgage Association
FENNEMORE CRAIG, P.C. Leslie Bryan Hart, Esq. (SBN 4932),
John D. Tennert, Esq. (SBN 11728) Attorneys for Federal
Housing Finance Agency
FEDERAL NATIONAL MORTGAGE ASSOCIATION'S AND
FEDERAL HOUSING FINANCE AGENCY'S JOINT MOTION TO
SUBSTITUTE AND JOIN AS COUNTER-DEFENDANT JOEL A. STOKES AND
SANDRA F. STOKES AS TRUSTEES OF THE JIMIJACK IRREVOCABLE
TRUST, PURSUANT TO FED. R. CIV. P. 25(c)
ROBERT
C. JONES, Judge
Intervenor
Defendant/Defendant-in-Intervention/Counterclaimant, Federal
National Mortgage Association (“Fannie Mae”), by
and through its counsel of record, Dana Jonathon Nitz, Esq.,
and Christina V. Miller, Esq., of the law firm Wright, Finlay
& Zak, LLP and Intervenor Defendant/Counterclaimant,
Federal Housing Finance Agency (“FHFA”), by and
through its counsel of record, Leslie Bryan Hart, Esq. and
John D. Tennert, Esq., of the law firm Fennemore Craig, P.C.,
jointly submits this Motion to Substitute and Join as
Counter-Defendant Joel A. Stokes and Sandra F. Stokes as
Trustees of the Jimijack Irrevocable Trust, Pursuant to
Fed.R.Civ.P. 25(c) (“Motion”), in order to
substitute, in part, and join, in part, the current record
owner of the subject property, Joel A. Stokes and Sandra F.
Stokes as Trustees of the Jimijack Irrevocable Trust
(collectively referred to herein as “Jimijack
Trust”).
MEMORANDUM
OF POINTS AND AUTHORITIES
I. INTRODUCTION
FHFA
and Fannie Mae seek relief from this Court to substitute
Jimijack Trust in place and stead of Plaintiff Absolute
Business Solutions, Inc. (“ABS”) with respect to
the Quiet Title and Declaratory Relief causes of action
alleged in Fannie Mae's Answer and Counterclaim [ECF No.
9] and the Quiet Title, Declaratory Relief and Preliminary
Injunction causes of action alleged in FHFA's Answer and
Counterclaim [ECF No. 18], and (ii) to join Jimijack Trust as
a Counter-Defendant with respect to Fannie Mae's
Counterclaim for Unjust Enrichment [ECF No.9]. Jimijack Trust
is the current owner of record of the subject property, and,
consequently, any quiet title judgment in this action should
be entered against the current record owner.
This
case involves the validity of a homeowner's association
foreclosure sale on February 26, 2014 (the “HOA
Sale”) against the real property commonly described as
3416 Casa Alto Ave., Las Vegas, Nevada 89031 and designated
by APN: 124-29-314-081 (“Property”). ABS is the
third-party entity that purchased the Property as at the HOA
Sale. ABS filed the instant action seeking to quiet title in
its favor. As discussed in further detail below, since
litigation commenced, ownership of the Property has allegedly
been transferred to Jimijack Trust. As such, Jimijack Trust
is the proper party-in-interest to the pending litigation and
should be substituted in place and stead of ABS as to Fannie
Mae's Counterclaims for Quiet Title and Declaratory
Relief and FHFA's Counterclaims for Quiet Title,
Declaratory Relief and Preliminary Injunction. Further,
because Jimijack Trust enjoys the benefits of funds and
resources expended to preserve the Property by Fannie
Mae's loan servicer, Seterus, Inc.
(“Seterus”), Jimijack Trust is also a proper
party-in-interest in relation to Fannie Mae's
counterclaim for Unjust Enrichment and Fannie Mae
respectfully requests that the Court join Jimijack Trust as a
Counter-Defendant to that cause of action. Fannie Mae and
FHFA respectfully request that the case caption is then
amended accordingly.
STATEMENT
OF FACTS
a.
The Mendez Loan
Fannie
Mae is the current beneficiary of record under the Deed of
Trust signed by Irma Mendez (hereinafter
“Mendez”), recorded on April 8, 2005
(hereinafter, the “Deed of Trust”), and which
encumbers the Property and secures repayment of a promissory
note.
The
Deed of Trust executed by Mendez identified KH Financial L.P.
as the Lender, Equity Title of Nevada as the Trustee,
Mortgage Electronic Registration Systems, Inc.
(“MERS”) as beneficiary acting solely as a
nominee for Lender and Lender's successors and assigns,
and secured a loan in the amount of $252, 792.00 (hereinafter
the “Mendez Loan”).[1] On October 22, 2009, a
Corporation Assignment of Deed of Trust to BAC Home Loans
Servicing, LP FKA Countrywide Home Loans Servicing LP
(“BANA”) was recorded against the
Property.[2] On November 13, 2014, a Corporate
Assignment of Deed of Trust to Fannie Mae was recorded
against the Property.[3]
b.
The Foreclosure Sale
Public
records show that on March 13, 2013, a Notice of Delinquent
Assessment (Lien) was recorded against the Property by Alessi
& Koenig, LLC (the “HOA Trustee”) on behalf
of the Fiesta Del Norte Homeowners Association (the
“HOA”).[4] Public records show that a Notice of
Default and Election to Sell Under Homeowners Association
Lien was recorded against the Property by the HOA Trustee on
behalf of the HOA on June 13, 2013.[5] Public records show that on
July 5, 2013, a second Notice of Default and Election to Sell
Under Homeowners Association Lien was recorded against the
Property by the HOA Trustee on behalf of the
...