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The Bank of New York Mellon v. Southern Highland Community Association

United States District Court, D. Nevada

December 6, 2017

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,
v.
SOUTHERN HIGHLAND COMMUNITY ASSOCIATION, a Nevada non-profit corporation, Defendants

          WRIGHT 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 ASSOCIATION

          Peggy A. Leen, United States Magistrate Judge.

         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 (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.

         This 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.

         MEMORANDUM OF POINTS AND AUTHORITIES

         I. STATEMENT OF FACTS

         On 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.

         The 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.

         BNYM is 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

         II. LEGAL ARGUMENTS

         A. EXTENDING TIME TO SERVE.

         Federal Rules of Civil Procedure (F.R.C.P.) 4(m) states, in pertinent part, that

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.

         In the 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 ...


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