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Nationstar Mortgage LLC v. Tyrolian Village Association, Inc.

United States District Court, D. Nevada

July 13, 2017

NATIONSTAR MORTGAGE LLC and FEDERAL NATIONAL MORTGAGE ASSOCIATION, a government sponsored enterprise, Plaintiff,
v.
TYROLIAN VILLAGE ASSOCIATION, INC.; AND AIRMOTIVE INVESTMENTS LLC, Defendants.

          ROGER P. CROTEAU, ESQ., Nevada Bar, 4958, TIMOTHY E. RHODA, ESQ. Nevada Bar, 7878, ROGER P. CROTEAU & ASSOCIATES, LTD., Attorney for Defendant AIRMOTIVE INVESTMENTS, LLC.

          AKERMAN, LLP, REX GARNER, ESQ. Attorney for Plaintiffs Nationstar Mortgage, LLC and Federal National Mortgage Association

          GORDON & REES LLP ROBERT S. LARSEN Nevada Bar No. 7785 Attorney for Defendant Tyrolian Village Association, Inc.

          STIPULATION FOR LEAVE TO FILE COUNTERCLAIM

         COMES NOW Plaintiff, NATIONSTAR MORTGAGE LLC and FEDERAL NATIONAL MORTGAGE ASSOCIATION; and Defendants, AIRMOTIVE INVESTMENTS, LLC ("Airmotive") and TYROLIAN VILLAGE ASSOCIATION, INC., by and through their undersigned counsel, and hereby stipulate and agree as follows:

1. On April 24, 2017, Plaintiff filed the instant Complaint. [ECF # 1 ]. Plaintiff thereafter filed a First Amended Complaint on May 11, 2017. [ECF #13].
2. On May 19, 2017, Airmotive filed its Answer to the First Amended Complaint. [ECF #14].
3. During the course of preparing its and serving its initial disclosures, Airmotive's counsel discovered facts that it believes give rise to a Counterclaim herein.
4. Airmotive shall have leave to file the Counterclaim attached hereto as Exhibit 1.
5. This Stipulation is made in good faith and not for purpose of delay.

         IT IS SO ORDERED.

         EXHIBIT 1

         UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

         NATIONSTAR MORTGAGE LLC and FEDERAL NATIONAL MORTGAGE ASSOCIATION, a government sponsored enterprise, Plaintiff, v.

         TYROLIAN VILLAGE ASSOCIATION, INC.; AND AIRMOTTVE INVESTMENTS LLC, Defendants.

         AIRMOTIVE INVESTMENTS, LLC, a Nevada limited liability company, Counterclaimant, v.

         NATIONSTAR MORTGAGE LLC, a Delaware limited liability company; FEDERAL NATIONAL MORTGAGE ASSOCIATION, a federally chartered corporation; DOUGLAS M. BRIMM, individually and as Trustee of the BRIMM FAMILY TRUST; GLORIA S. BRIMM, individually and as Trustee of the BRIMM FAMILY TRUST; DOE individuals I through XX; and ROE CORPORATIONS I through XX, Counter-Defendants.

         COUNTERCLAIM

         COMES NOW, Defendant, AIRMOTIVE INVESTMENTS, LLC, by and through its attorneys, ROGER P. CROTEAU & ASSOCIATES, LTD., and hereby complains and alleges as follows:

         PARTIES

         1. At all times relevant to this matter, Counterclaimant, AIRMOTIVE INVESTMENTS, LLC, was and is a Nevada limited liability company, authorized to do business and doing business in the County of Washoe, State of Nevada.

         2. Upon information and belief, at all times relevant to this matter, Counter-Defendant, DOUGLAS M. BRIMM, was and is an individual and resident of the County of Washoe, State of Nevada, and a Trustee of the BRIMM FAMILY TRUST.

         3. Upon information and belief, at all times relevant to this matter, Counter-Defendant, GLORIA S. BRIMM, was and is an individual and resident of the County of Washoe, State of Nevada, and a Trustee of the BRIMM FAMILY TRUST.

         4. Upon information and belief, at all times relevant to this matter, Counter-Defendant, NATIONSTAR MORTGAGE LLC ("Nationstar"), was and is a Delaware limited liability company, authorized to do business and doing business in the County of Washoe, State of Nevada.

         5. Upon information and belief, at all times relevant to this matter, Counter-Defendant, FEDERAL NATIONAL MORTGAGE ASSOCIATION ("Fannie Mae "), was and is a federally chartered corporation, authorized to do business and doing business in the County of Washoe, State of Nevada.

         6. Counterclaimant is unaware of the true names and capacities whether individuals, corporations, associates, or otherwise of Counter-Defendants DOES I through X and ROE Corporations I through X, inclusive, and therefore sues these Counter-Defendants by such fictitious names. Counterclaimant is informed and believes and thereupon alleges that the Counter-Defendants, and each of them, are in some manner responsible and liable for the acts and damages alleged in this Counterclaim. Counterclaimant will seek leave of this Court to amend this Counterclaim to allege the true names and capacities of the DOES and ROE CORPORATIONS Counter-Defendants when the true names of the DOES and ROE CORPORATIONS Counter-Defendants are ascertained.

         GENERAL ALLEGATIONS

         7. Counterclaimant repeats and realleges each and every allegation contained in paragraphs 1 through 6 hereof as if set forth fully herein.

         8. Prior to the facts and circumstances alleged herein, a Declaration was recorded in the Office of the Recorder of Washoe County, thereby creating Tyrolian Village Association, Inc. (the "HOA ") and perfecting a lien in favor of the HOA on all real property located within the common interest community it governed, including but not limited to that real property commonly known as 1364 Carinthia Court, Incline Village Nevada 89451, Assessor Parcel No. 126-430-13 (the"Property").

         9. The lien having been recorded prior to any other liens is first in right and first in time as to all other interests recorded after the Declaration with the exception of liens for real estate taxes and other governmental assessments.

         10. N.R.S. Chapter 116 provides that the lien perfected by the Declaration is subordinate to a "first security interest on the unit recorded before the date on which the assessment sought to be enforced became delinquent." 11. While this statutory subordination applies to the majority of the lien perfected by the Declaration, pursuant to N.R.S. 116.3116(2)(c), it does not subordinate the lien to two specific charges incurred under it.

         12. The charges which are specifically NOT subordinated to the first security interest include:

(1) any charges incurred by the association on a unit pursuant to NRS 116.310312 and;
(2) that portion of the assessments for common expenses based on the periodic budget adopted by the association pursuant to NRS 116.3115 which would have become due in the absence of acceleration during the 9 months immediately preceding institution of an action to enforce the lien.

         13. On or about June 24, 2004, Counter-Defendant, GLORIA S. BRIMM (together with Counter-Defendant, Douglas M. Brimm, the "Former Owners"), acquired title to and ownership of the Property.

         14. Between approximately June 24, 2004, and July 3, 2014, Former Owners held title to and ownership of the Property either jointly, in an individual capacity or by and through a trust.

         15. Upon information and belief, Former Owners obtained one or more mortgages and/or lines of credit secured by the Property.

         16. On July 29, 2004, a deed of trust was recorded against the Property in the Office of the Recorder of Washoe County, Nevada, as Instrument ...


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