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Absolute Business Solutions, Inc. v. Mortgage Electronic Registration System

United States District Court, D. Nevada

April 11, 2017

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 ...


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