United States District Court, D. Nevada
before the court is plaintiff Bank of America, N.A.'s
(“BOA”) motion to bifurcate trial. (ECF No. 77).
Defendant Samuel R. Bailey filed a response (ECF No. 80), to
which plaintiff replied (ECF No. 84).
initiated the present action, requesting declaratory relief
and quiet title as to its alleged first-position security
interest in the real property at 4850 Impressario Court, Las
Vegas, Nevada (the “property”). (ECF No. 1).
Neither party has requested a jury.
then filed the following counterclaims against BOA: (1)
offset; (2) unjust enrichment; (3) slander of title; and (4)
attorneys' fees as special damages. (ECF No. 39).
to BOA, dismissed co-defendant Peter Aguilar owned the
property, refinancing it with a roughly $400, 000.00 loan
from Countrywide Bank, FSB (“Countrywide”) on
December 17, 2008. (ECF No. 68). This transaction was secured
by a deed of trust for Countrywide that was recorded on the
same day. Id.
January 23, 2010, Aguilar then refinanced the property by
means of a $396, 459.00 loan from BOA, which satisfied the
outstanding Countrywide loan. Id. As a result, a
February 2, 2010, substitution of trustee and reconveyance
was recorded. Id.
asserts that a first deed of trust on the property secured
the BOA loan. Id. Importantly, plaintiff indicates
that the deed of trust was executed by Aguilar on January 23,
2010, but it was not recorded until October 21, 2011.
meantime, Aguilar and Bailey allegedly acted as principals of
Silver State Steel Group, Inc. in the course of that
entity's acquisition of a Small Business Administration
(“SBA”) loan from Meadows Bank
(“Meadows”). (ECF No. 70).
asserts that “Aguilar and Bailey additionally each
personally guaranteed the SBA Loan. As additional collateral
for the SBA Loan, Aguilar granted Meadows a second-position
Deed of Trust . . . on the Property, which was recorded on
July 1, 2010.” (ECF No. 68 at 4) (citations omitted).
Plaintiff alleges that Bailey and Meadows had actual
knowledge of the BOA loan and unrecorded deed of trust.
Aguilar received a loan from Franklin America Mortgage
Company (“Franklin”). (Id.). That
“[l]oan was secured by a First Deed of Trust recorded
against the Property on December 1, 2010.” Id.
at 5. This loan was “used to fully satisfy the
outstanding balance owed on the BOA Deed.” Id.
December 13, 2012, Franklin assigned its deed of trust to
BOA. Id. Thereafter, “Bailey . . . acquired an
assignment of Meadows' right, title, and interest on June
6, 2013.” (ECF No. 71 at 6).
September 3, 2013, defendant Bailey recorded a notice of
default and election to sell. Id. On May 14, 2014,
defendant recorded a notice of sale. Id. Plaintiff
initiated the instant action on June 6, 2014, requesting a
declaratory judgment that its security interest in the
property, stemming from the Franklin deed of trust, “is
superior to and holds priority over the Meadows Deed of
Trust.” (ECF No. 1 at 4). Finally, “Bailey
acquired a Trustee's Sale Deed to the Property on
September 9, 2014.” (ECF No. 70 at 5).
and defendant filed cross-motions for summary judgment on
their claims. (ECF Nos. 68, 70). On June 22, 2017, this court
granted in part and denied in part plaintiff's motion,
and denied defendant's motion. (ECF No. 76). The court
held that a dispute of fact exists concerning whether
Franklin's expectation of subrogation at the time of
discharge of the original BOA deed of trust was reasonable.
(ECF No. 76 at 7-8).