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U.S. Bank, N.A. v. 508 Bruny Island Trust

United States District Court, D. Nevada

August 25, 2017

U.S. BANK, N.A., AS TRUSTEE FOR THE CMLTI ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-AMC3, Plaintiff,
v.
508 BRUNY ISLAND TRUST; WASHBURN CREEK ASSOCIATION, a Nevada non-profit corporation, Defendants. WASHBURN CREEK ASSOCIATION, a Nevada non-profit corporation, Third-Party Plaintiff
v.
ABSOLUTE COLLECTION SERVICES, LLC, a Nevada limited liability company. Third-Party Defendant

          EDWARD D. BOYACK Nevada Bar No. 005229 ADAM J. BREEDEN, ESQ. Nevada Bar No. 008768 BOYACK ORME & ANTHONY Attorneys for Defendant Washburn Creek Association.

          WASHBURN CREEK ASSOCIATION'S MOTION FOR LEAVE TO FILE A THIRD PARTY COMPLAINT

         COMES NOW, Defendant, WASHBURN CREEK ASSOCIATION, by and through its counsel of record, Edward D. Boyack, Esq. and Adam J. Breeden, Esq. of the law firm Boyack Orme & Anthony, and hereby moves the Court for Leave to File a Third-Party Complaint Pursuant to Fed. R. Civ. Pro. 14(a)(1).

         I. Factual and Procedural History

         This is an action by Plaintiff, U.S. BANK (hereinafter “Plaintiff) arising from the nonjudicial homeowners' association assessment lien foreclosure sale of the real property located at 508 Bruny Island, North Las Vegas, NV 89081 (hereinafter the “Property”). The Plaintiff generally disputes the validity of the sale and seeks to affirm or restore the status of its first deed of trust on the Property.

         Defendant WASHBURN CREEK filed its Answer to Plaintiffs Complaint on May 30, 2017 [ECF No. 35]. WASHBURN CREEK has been working diligently to gather and review relevant documents as well as evaluate the nature of Plaintiff s claims against the HO A. As a result of the investigation, WASHBURN CREEK has ascertained that a non-party, Absolute Collection Services, LLC was the entity that performed the collection and foreclosure sale activities of which Plaintiff has complained. Absolute Collection Services, on behalf of WASHBURN CREEK, was the entity that managed and conducted the collections and foreclosure process on the Property.

         WASHBURN CREEK seeks leave of the Court to file a third-party complaint against Absolute Collection Services. A copy of the proposed Third-Party Complaint is attached hereto as Exhibit A. The nature of the proposed Third-Party Complaint is for breach of contract, contribution and indemnity should a defect in the foreclosure process be found. It is necessary to add Absolute Collection Services to this case in order to apportion liability to them at trial, if any is found.

         The Court's Scheduling Plan [ECF No. 23] provides the parties until September 1, 2017 to file motions to amend pleadings or add parties. Thus, WASHBURN CREEK has timely sought this leave to amend.

         II. Legal Argument

         Pursuant to FRCP 14(a)(1),

A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.

         The Court has the discretion to grant leave to file the third-party complaint. Southwest Administrators, Inc. v. Rozay's Transfer, 791 F.2d 769, 777 (9th Cir. 1986). The Court may grant leave when doing so would not “disadvantage the existing action” or complicate or lengthen the trial. Id. The purpose of Rule 14 “is to promote judicial efficiency by eliminating the necessity for the defendant to bring a separate action against a third individual who may be secondarily or derivatively liable to the defendant for all or part of the plaintiffs original claim.” Id. Courts in the Ninth Circuit have long recognized Rule 14(a) as the proper vehicle through which contribution may be sought against a non-party. Employers Ins. of Wausau v. Musick, Peeler & Garrett, 954 F.2d 575, 577 (9th Cir. 1992) (internal citations omitted).

         In this present case, WASHBURN CREEK seeks to file a third-party complaint against Absolute Collection Services for indemnity and contribution to the extent of any damages which the Court may find against WASHBURN CREEK arising from Absolute Collection Services' conduct as collection agent acting on behalf of the association. Absolute Collection Services may be secondarily or derivatively liable to WASHBURN CREEK for breach of contract, indemnity, and contribution based on its actions or omissions in the collection and foreclosure process of which Plaintiff complains.

         Judicial economy and interest of justice weigh in favor of grant of leave. Allowing WASHBURN CREEK to bring Absolute Collection Services into this action will promote judicial efficiency as it may eliminate the need for WASHBURN CREEK to bring a separate action in the future against Absolute Collection Services. Leave to file the Third-Party Complaint and add a party is sought within the time contemplated by the Court's Scheduling Plan [ECF No. 23] which provides the parties until September 1, 2017 to file motions to amend pleadings or add parties. Further, Absolute Collection Service's involvement in this litigation as a party may facilitate the discovery of relevant documents as Absolute Collection Services was the entity which handled the foreclosure sale. Absolute Collection Services is integrally involved in the events that led to Plaintiffs lawsuit. WASHBURN CREEK's claims against Absolute Collection Services will not complicate the existing action by Plaintiff.

         III. ...


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