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Mott v. PNC Financial Services Group, Inc.

United States District Court, D. Nevada

June 13, 2017

RODNEY MOTT, Plaintiff,
v.
THE PNC FINANCIAL SERVICES GROUP, INC; SELECT PORTFOLIO SERVICING, INC; TRINITY FINANCIAL SERVICES, LLC; TROJAN CAPITAL INVESTMENTS, LLC, RADIAN SERVICES, LLC; and SPECIAL DEFAULT SERVICES, INC. Defendants. TROJAN CAPITAL INVESTMENTS, LLC, Counterclaimant,
v.
RODNEY MOTT; RADIAN SERVICES, LLC; PNC BANK, N.A.; THE PNC FINANCIAL SERVICES GROUP, INC. BANK OF AMERICA, N.A.; SELECT PORTFOLIO SERVICING, INC.; WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity but solely as trustee under the Greenwich Investors XL Pass-Through Trust Agreement; DTA SOLUTIONS LLC; BSI FINANCIAL SERVICES INC.; DREAMBUILDER INVESTMENTS LLC; LAND HOME FINANCIAL SERVICES, INC.; TRINITY FINANCIAL SERVICES, LLC; and Also all other persons unknown claiming any right, title, estate, lien or interest in the real property described in the counterclaim adverse to counterclaimant's ownership in the referenced lien and note stated herein, or any cloud upon counterclaimant's title to the referenced lien and note herein inclusive, Counterdefendants.

          BURKE, WILLIAMS & SORENSEN, LLP BY RICHARD J. REYNOLDS MICHAEL R. BROOKS BROOKS HUBLEY, LLP ATTORNEYS FOR DEFENDANTS TROJAN CAPITAL INVESTMENTS, LLC AND TRINITY FINANCIAL SERVICES, LLC

          MOTION TO EXPAND TIME FOR SERVICE

          C.W. HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE

         COMES NOW, Defendant and Counterclaimant, TROJAN CAPITAL INVESTMENTS, LLC ("Trojan"), by and through its attorneys, Richard Reynolds of BURKE, WILLIAMS & SORENSEN, LLP, and hereby moves this Honorable Court for an Order Expanding Time for Service of Process and Granting Leave for Service of ninety ("90") days as to DREAMBUILDER INVESTMENTS LLC, a New York Limited Liability Company.

         This Motion is made and based upon the attached Memorandum of Points and Authorities, the attached declaration and exhibits, the papers and pleadings on file herein, and any oral argument that this Honorable Court may entertain at the time of hearing of this Motion.

         MEMORANDUM OF POINTS AND AUTHORITIES

         I. STATEMENT OF RELEVANT FACTS

         Plaintiffs first amended and supplemental complaint ("FAC") pleads various counts including violation of the Federal Debt Collection Practices Act, Declaratory Relief regarding alleged unenforceability of the subject loan note, breach of an alleged accord to forgive the debt, declaratory relief regarding allegeed inability to foreclose, unjust enrichment, civil conspiracy, and misrepresentation as to the alleged forgiveness of the debt. The claims are related to real property commonly known as 609 Verde Vista Place, Las Vegas, Nevada 89145 (the "Property").

         TROJAN CAPITAL INVESTMENTS, LLC ("Trojan") filed its Amended Answer to the FAC and pleaded counterclaims ("Counterclaims") therein of quiet title and declaratory relief on March 13, 2017 against the parties listed above. The counterclaim seeks to quiet title to the deed of trust in favor Trojan and the declaratory relief claim seeks a finding that Trojan is the owner in possession of the original note which is secured by the deed of trust recorded referencing the original note and that Trojan is the owner and trust deed beneficiary of that deed of trust. The Counterdefendants are necessary parties because Trojan seeks to exclude them from any interest in the subject Deed of Trust and Note as well to remove all impediments created with respect to those documents.

         All of the Counterdefendants to the Counterclaims have been served except for Counterdefendant DREAMBUILDER INVESTMENTS LLC ("Dreambuilder"). To date, although Trojan "served" Dreambuilder, it appears to have been unable to do so properly as discussed in further detail below.

         On April 3, 2017, Trojan's process server appeared at the corporate office of Dreambuilder, and served an unnamed person who appeared to be a Dreambuilder representative, but the process server does not appear to have successfully served an, "officer, a managing or general agent, or.. .other agent authorized by appointment or by law to receive service of process." Federal Rules of Civil Procedure, Rule 4(h). It also appears there was no confirmation the person served was authorized by appointment or law to receive service of the summons and complaint.

         Given the number of Counterdefendants served and a proof of service from the process server very late of "service" on Dreambuilder, this apparent error in service was not discovered until the week of June 5, 2017, when the process server sent the proof of service to counsel for Trojan and Trojan's counsel had the opportunity to review it. Service by the process server was confirmed but because a proof of service was provided late by the process server, Trojan now needs to expand time for service for 90 days for personal service or another method allowed on business entities by the States of New York or Nevada.

         A Proof of Service of Summons on Dreambuilder is on file (Doc. 68), and Trojan seeks to expand the time for service for 90 days to file an Amended Proof of Service reflecting proper service on Dreambuilder. Trojan anticipates service will occur well before the time requested in that if Dreambuilder cannot be "personally" served, Trojan will use other methods allowed to serve business entities.

         Counterdefendant Dreambuilder is a necessary party to this suit in that Trojan is informed and believes that Dreambuilder at one time owned the Note and sold the Note to Defendant TRINITY FINANCIAL SERVICES, LLC ("Trinity"), which then for consideration transferred ownership of the Note to Trojan. Further, Trojan is informed and believes that Dreambuilder represented to Trinity it had possession and ownership of an original deed of trust and was the rightful trust deed beneficiary under that deed of trust. Trinity for consideration transferred that deed of trust to Trojan.

         II. ...


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