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Branch Banking And Trust Co. v. Rossal

United States District Court, D. Nevada

August 22, 2017




         I. SUMMARY

         The Court issued judgment in favor of Plaintiff Branch Banking and Trust (“BB&T” and against Defendant Onelia Rossal (“Defendant”) on November 23, 2015, and issued an Order granting BB&T's motion for attorneys' fees on September 26 2016 (“Fee Award”). (ECF Nos. 77, 84.) About a year later after entry of judgment, on November 21, 2016, Defendant moved to vacate the judgment and Fee Award. (ECF No. 85.) The Court has reviewed BB&T's response (ECF No. 88) and Defendant's reply (ECF No. 91). Because the Court finds that the issue raised in the reply brief relating to a purposed defense to the entry of judgment to be irrelevant to the Court's consideration of whether to vacate the judgment, the Court denies BB&T's motion to file a sur-reply to address this issue (ECF No. 92). For the reasons discussed below, Defendant's Motion to Vacate Judgments (“Motion”) (ECF No. 85) is denied.


         A. Factual Background

         On December 12, 2005, Defendants Feliciano Rossal (“Rossal”) and Onelia Rossal (together, “Borrowers”) executed a promissory note (“Note”) with a principal amount of $281, 000.00 and delivered it to Colonial Bank, N.A. (ECF No. 67 at 1.) The Note was secured by a Deed of Trust that encumbered real property in Clark County, Nevada (“the Property”). (Id. at 2.) Defendant Chano's Landscaping, Inc. (“Chano” or “Gurantor”) guaranteed payments under the Note. (Id. at 3.)

         At some point thereafter, Colonial Bank, N.A., was converted from a national banking association into a state-chartered bank. (Id. at 4.) Colonial Bank, an Alabama banking corporation, became its successor. (Id.) In August 2009, Alabama state officials closed Colonial Bank; the Federal Deposit Insurance Corporation (“FDIC”) was named the receiver. (Id. at 5.) The FDIC, in turn, assigned its rights under the Note, Deed of Trust, and other loan documents to BB&T. (Id. at 6-7.)

         The Borrowers defaulted on the Note in December 2010. (Id. at 8.) At a non-judicial trustee's sale in February 2012, Defendant purchased the Property through a credit bid of $144, 000.00. (Id. at 9.) The sale only partially compensated for the loan's outstanding balance. (Id. at 10.)

         B. Procedural Background

         Plaintiff initiated this lawsuit on July 23, 2012, alleging a deficiency against the Borrowers, a breach of guaranty against the Guarantor, and a breach of the covenant of good faith and fair dealing against the Borrowers and the Guarantor. (ECF No. 1.) Defendants filed a motion to dismiss for lack of standing in September 2012 (ECF No. 7), which the Court denied. (ECF No. 31.) The parties then filed several motions for summary judgment. (ECF Nos. 33, 34, 35, 39.)

         On April 10, 2014, the Court granted Defendants' attorney's motion to withdraw. (ECF No. 54.) The Court directed the Clerk of the Court to serve Defendants with a copy of the April 2014 Order granting their counsel's motion to withdraw at their last known addressed and to add these addresses to the civil docket. (Id.) The Order identified two separate last known addresses for Defendant in Las Vegas: 7735 Dean Martin Drive[1]; and 1462 Marion Drive. (Id. at 2.) The effect of the April 2014 Order is that until any of the Defendants appear through counsel, orders issued by the Court would be mailed to Defendants' last known addresses.

         The next month, in May 2014, Rossal and Chano's notified the Court that they had filed for bankruptcy. (ECF Nos. 58, 59, 62.) On July 17, 2014, BB&T filed a status report (“Status Report”), notifying the Court that it cannot take any action against Rossal and Chano because of the automatic stay, but that it intends to seek judgment against Defendant because Defendant “has not filed a bankruptcy petition, and in fact is a creditor” in Rossal's bankruptcy case[2]. (ECF No. 61.) In response, on July 21, 2014, the Court stayed the case with respect to Rossal and Chano, but declared that the action is not stayed with respect to Defendant. (ECF No. 62.)

         On September 23, 2014, the Court heard oral argument on the pending motions for summary judgment and for a deficiency hearing on September 23, 2014. (ECF No. 64.) Defendant did not appear for the hearing. In light of her absence and the recent bankruptcy filings, the Court denied the parties' summary judgment motions without prejudice, and denied Plaintiff's motion for a deficiency hearing as moot. (Id.) Plaintiff moved for voluntary dismissal of Chano's in August 2015, which the Court granted. (ECF Nos. 70, 71.)

         On November 17, 2014, Plaintiff again moved for summary judgment against Defendant and a deficiency hearing, and moved to dismiss Rossal. (ECF Nos. 67, 68, 65.) On September 29, 2015, the Court granted Plaintiff's motion to dismiss Rossal, motion for summary judgment as to the deficiency claim against Defendant and set a hearing to determine the fair market value of the Property. (ECF No. 72.) The fair market value hearing was held on October 28, 2015. (ECF No. 75.) On November 23, 2015, the Court entered judgment against Defendant. (ECF No. ...

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