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Christiana Trust v. Panorama Towers Condominium Unit Owners' Association

United States District Court, D. Nevada

November 22, 2017

CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF ARLP TRUST 3, Plaintiff,
v.
PANORAMA TOWERS CONDOMINIUM UNIT OWNERS' ASSOCIATION, a Nevada Non-Profit Corporation, Defendant.

          WRIGHT, FINLAY & ZAK, LLP Dana Jonathon Nitz, Esq. Nevada Bar No. 0050 Christina V. Miller, Esq. Nevada Bar No. 12448 Regina A. Habermas, Esq. Attorneys for Plaintiff, Christiana Trust, a division of Wilmington Savings Fund Society, FSB, not in its individual but as Trustee of ARLP Trust3

          MOTION TO ENLARGE TIME TO SERVE DEFENDANT PANORAMA TOWERS CONDOMINIUM UNIT OWNERS' ASSOCIATION WITH SUMMONS AND COMPLAINT

         Pursuant to Fed.R.Civ.P. 4(m), Plaintiff, Christiana Trust, a division of Wilmington Savings Fund Society, FSB, not in its individual but as Trustee of ARLP Trust3 (“Christiana Trust”), by and through its attorneys of record, Dana Jonathon Nitz, Esq., Christina V. Miller, Esq.,, and Regina A. Habermas, Esq. of the law firm of Wright, Finlay & Zak, LLP, hereby moves the Court to enlarge the time to serve Defendant, Panorama Towers Condominium Unit Owners' Association (the “HOA”) with the Summons and Complaint by, at least, an additional 45 days.

         This Motion is based on the attached memorandum of law, all pleadings and papers on file, and any oral argument as permitted by the Court. Since Christiana Trust has not yet served the Complaint on the named defendant, Christiana Trust anticipates the Motion will necessarily remain unopposed.

         WRIGHT, FINLAY & ZAK, LLP Regina A. Habermas, Esq. Dana Jonathon Nitz, Esq. Nevada Bar No. 00050 Christina V. Miller, Esq. Nevada Bar No. 12448 Regina A. Habermas, Esq. Nevada Bar No. 8481 7785 W. Sahara Ave., Suite 200 Las Vegas, NV, 89117 Attorneys for Plaintiff, Christiana Trust, a division of Wilmington Savings Fund Society, FSB, not in its individual but as Trustee of ARLP Trust3

         MEMORANDUM OF POINTS AND AUTHORITIES

         I. INTRODUCTION

         This action arises out of a non-judicial foreclosure sale of the real property located at 4575 Dean Martin Drive, Unit 1500, Las Vegas, Nevada 89103 (the “Property”) conducted by the HOA (the “HOA Sale”). Christiana Trust seeks an award of damages resulting from the failure of the HOA and its foreclosure trustee to conduct the HOA Sale in compliance with applicable law. Christiana Trust respectfully requests the Court enter an Order enlarging the time to serve the Summons and Complaint on the HOA pursuant to Fed.R.Civ.P. 4(m) and 6(b). This Court has broad discretion to enlarge the time for service. In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). Thus, the Court may enlarge the period of time within which a Summons and Complaint is to be served even where a party fails to demonstrate good cause for failure to serve within 90 days. Id. Christiana Trust submits that good cause exists to extend the deadline because the failure to effect service on the HOA within the prescribed period resulted from a desire to conserve the resources of the Court and the parties to this action. If the Court does not find good cause exists in these circumstances, Christiana Trust submits the failure to serve the HOA was the result of excusable neglect and the Court should exercise its discretion to grant the requested extension.

         II. PROCEDURAL HISTORY

         This Action for Damages

         On August 22, 2017, Christiana Trust filed its Complaint against the HOA. [ECF No. 1]. On August 29, 2017, Christiana Trust submitted its Proposed Summons to the HOA. [ECF No. 2]. The Summons was issued by the Court the same day. [ECF No. 4]. Also on August 29, 2017, Christiana Trust filed a Notice of Lis Pendens. [ECF No. 3]. Finally, on September 7, 2017, Christiana Trust filed its Certificate of Interested Parties [ECF No. 5].

         State Court Title Dispute

         On October 12, 2015, Christiana Trust filed a Complaint for Quiet Title and Declaratory Relief against the buyer at the HOA Sale, SFR Investments Pool 1, LLC (“SFR”) in the Eighth Judicial District Court, in and for the State of Nevada, Case No. A-15- 726031-C (the “Quiet Title Action”).[1] The pleadings closed on April 4, 2016, when Christiana Trust filed its Answer to SFR's Counterclaim.[2] After the close of discovery in the Quiet Title Action, the parties filed competing Motions for Summary Judgment.[3] The dispositive motions were fully briefed and the Court scheduled a hearing of them on October 24, 2017.[4] Christiana Trust expected the Court to rule on the competing motions and resolve the title dispute during that hearing.[5] However, the Court continued the hearing to December 7, 2017 and has not yet ruled on the dispositive motions.[6]

         Had the Court granted Christiana Trust's Motion for Summary Judgment in the Quiet Title Action, the claims asserted against the HOA here would likely be rendered moot and Christiana Trust could decide not to litigate those claims.[7] Thus, the anticipated October 24, 2017 ruling was potentially dispositive of the issues raised in this action.[8] Under those circumstances, Christiana Trust determined the Court's and parties' resources could be preserved if the Summons and Complaint were not served on the HOA until after the October 24, 2017 hearing.[9] As noted above, the dispositive motion hearing in the Quiet Title Action was continued to a date after the November 20, 2017 deadline to serve the HOA in this case.[10] As the result of mistake or inadvertence, the Summons and Complaint were not served on the HOA prior to that deadline.[11]

         III. ...


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