United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2006-41CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-41CB, Plaintiff,
SOUTHERN HIGHLAND COMMUNITY ASSOCIATION, a Nevada non-profit corporation, Defendants
FINLAY & ZAK LLP Edgar Smith, Esq., Christina V. Miller,
Esq. Attorneys for Plaintiff.
THE BANK OF NEW YORK MELLON'S APPLICATION FOR
TIME TO SERVE COMPLAINT AGAINST SOUTHERN HIGHLAND COMMUNITY
A. Leen, United States Magistrate Judge.
BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE
LOAN TRUST 2006-41CB, MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-41CB (hereinafter “BNYM” or
“Plaintiff”) by and through its attorneys of
record, Christina V. Miller, Esq. and Edgar C. Smith, Esq. of
the law firm of Wright, Finlay & Zak, LLP, hereby move
for an order extending the time in which to serve process on
Defendant SOUTHERN HIGHLAND COMMUNITY ASSOCIATION by a period
of forty-five (45) days.
Application is based on the attached Memorandum of Points and
Authorities, all papers and pleadings filed herein, and on
any oral or documentary evidence that may be presented at a
hearing on this matter.
OF POINTS AND AUTHORITIES
STATEMENT OF FACTS
September 5, 2017, BNYM filed a Complaint for Wrongful
Foreclosure, Unjust Enrichment, and Breach of Contract
against Defendant Southern Highland Community Association.
However, at the time the Complaint was filed, BNYM was aware
that the required Nevada Real Estate Division
(“NRED”) mediation with the HOA had not yet been
completed. Absent completion of the NRED mediation with the
HOA, the Complaint was subject to a possible Motion to
Dismiss based on lack of jurisdiction. For that reason, BNYM
did not attempt to serve the complaint so as to permit the
NRED process to finish first.
NRED mediation proceeding went forward on November 15, 2017.
However, based on the results from that mediation and Nevada
Supreme Court precedent which issued within the past two
weeks, including Nationstar v. Saticoy Bay LLC Series
2227 Shadow Canyon, 133 Nev. Adv. Op. 91 (Nov. 22, 2017)
and U.S. Bank National Association vs. Nevada New Builds,
LLC, Case No. 69421, Order of Affirmance Filed Nov. 29,
2017, BNYM became aware of a need to amend its Complaint
prior to service on the HOA.
currently in the process of drafting an Amended Complaint and
anticipates filing that document within the next 10 days.
Therefore, BNYM respectfully requests that the designated
period of time to complete service of process be extended for
forty-five (45) days from the date that an Order is entered
in this case
EXTENDING TIME TO SERVE.
Rules of Civil Procedure (F.R.C.P.) 4(m) states, in pertinent
If a defendant is not served within 90 days after the
complaint is filed, the court-on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
instant case, good cause exists to extend the time for
service. The complaint was filed so that it was timely. BNYM
did not serve the summons and complaint, because the
complaint would have been ripe for the HOA to file a Motion
to Dismiss for ...