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Bank of America, N.A. v. Ann Losee Homeowners' Association

United States District Court, D. Nevada

October 5, 2017

BANK OF AMERICA, N.A., Plaintiffs,
v.
ANN LOSEE HOMEOWNERS ASSOCIATION, et al., Defendants.

          ORDER

         Presently before the court is plaintiff Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP's (BANA) amended motion for leave to file an amended complaint to reassert claims against Ann Losee Homeowners' Association (HOA). (ECF No. 62).

         I. Facts

         This case involves a dispute over real property located at 2317 Clarington Avenue, North Las Vegas, Nevada (the “property”). On November 21, 2009, Paul Borin obtained a loan from First Option Mortgage in the amount of $204, 355.00, which was secured by a deed of trust recorded on November 30, 2009. Id.

         The deed of trust was assigned to BANA via an assignment of deed of trust recorded on November 14, 2011. Id.

         On November 19, 2013, defendant Absolute Collection Services, LLC (“ACS”), acting on behalf of the HOA, recorded a notice of delinquent assessment lien, stating an amount due of $1, 668.83. Id. On January 8, 2014, ACS recorded a notice of default and election to sell to satisfy the delinquent assessment lien, stating an amount due of $2, 385.68. Id.

         On February 3, 2014, BANA requested a ledger from the HOA/ACS identifying the superpriority amount allegedly owed to the HOA. Id. The HOA/ACS provided a ledger dated February 19, 2014, stating a superpriority amount owed of $2, 104.35 and a total owed of $6, 553.45. (ECF No. 1). BANA calculated the superpriority amount to be $180.00 and tendered that amount to ACS on March 3, 2014, which the HOA allegedly accepted. Id.

         On April 30, 2014, ACS recorded a notice of trustee's sale, stating an amount due of $3, 843.76 and scheduling the sale for June 17, 2014. Id. On June 17, 2014, defendant Nevada New Builds, LLC (“NNB”) purchased the property at the foreclosure sale for $9, 000.00. (ECF No. 1). A foreclosure deed in favor of NNB was recorded on June 19, 2014. Id.

         NNB transferred the property to defendant Janet Garcia by a deed of sale recorded on July 23, 2014. (ECF No. 1). Thereafter, Garcia transferred the property to defendant Arkham, LLC by quitclaim deed recorded on May 1, 2015. Id. Subsequently, Arkham, LLC transferred the property to defendant Arkham XIII, LLC (Arkham XIII) by a grant, bargain, sale deed recorded on May 11, 2015. Id.

         On November 10, 2015, BANA submitted a demand for mediation with the Nevada Real Estate Division (NRED), as required by NRS 38.310. (ECF No. 60-1). Although NRS 38.330 requires that “. . . mediation must be completed within 60 days after the filing of the written claim, ” the record shows that NRED did not assign the parties to mediation until October 31, 2016-nearly a year after they filed their mediation demand. (See ECF No. 60-2). They did not finally mediate until this year on March 23, 2017, nearly one and a half years after they filed their mediation demand.[1] (ECF No. 60-3).

         In the meantime, BANA filed the complaint in this matter on February 26, 2016. (ECF No. 1). In it, BANA asserts four claims of relief: (1) quiet title/declaratory judgment against all defendants; (2) breach of NRS 116.1113 against ACS and the HOA; (3) wrongful foreclosure against ACS and the HOA; and (4) injunctive relief against Arkham XIII. (ECF No. 1).

         On October 18, 2016, the court dismissed claims (2) and (3) of BANA's complaint (ECF No. 1) without prejudice for failure to mediate pursuant to NRS 38.310. (ECF No. 35).

         On June 15, 2017, BANA represented to the court that mediation has since been completed and moved for leave to file an amended complaint to reassert the same claims at issue in the present motion, its claims against the HOA for breach of NRS 116.1113 and wrongful foreclosure. (ECF No. 60).

         This court denied that motion pursuant to Local Rule 15-1(a) and NRS 38.330(1) because BANA did not attach a proposed amended complaint to its motion, nor did it indicate whether an agreement was obtained. (ECF No. 61).

         On June 22, 2017, BANA filed the instant “amended motion for leave to reassert claims, ” having purportedly corrected the mistakes of the previous motion. (ECF No. 62). The HOA responded, arguing that the motion to amend should be denied because it is untimely and futile. (ECF No. 65). BANA replied, arguing that it has good cause to justify the timing of its motion because the mediation did not occur until after the deadline for ...


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