United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
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.
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.)
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.)
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.)
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.)
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; 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.
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. (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.)
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.)
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. ...