United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK AS SUCCESSOR IN INTEREST TO JP MORGAN CHASE BANK NA AS TRUSTEE FOR STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. BEAR STEARNS ALT-A TRUST 2005-9, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-9, Plaintiff,
v.
LAS VEGAS DEVELOPMENT GROUP LLC, a Nevada limited-liability company; ROYAL HIGHLANDS STREET AND LANDSCAPE MAINTENANCE CORPORATION, a Nevada non-profit corporation; and ALESSI & KOENIG, LLC, a Nevada limited-liability company; Defendants.
Andrew
M. Jacobs, Esq. Blakeley E. Griffith, Esq. Nevada Bar No.
12386 Holly E. Cheong, Esq. Nevada Bar No. 11936 SNELL &
WILMER L.L.P. Attorneys for Plaintiff Bank of New York Mellon
STIPULATION AND ORDER TO FILE FIRST AMENDED
COMPLAINT
Plaintiff
the Bank of New York Mellon, fka The Bank of New York as
Successor in Interest to JP Morgan Chase Bank NA as Trustee
for Structured Asset Mortgage Investments II Inc. Bear
Stearns ALT-A Trust 2005-9, Mortgage Pass-Through
Certificates, Series 2005-9 ("BNYM" or
"Plaintiff), and Defendants Las Vegas Development Group
LLC ("LVDG") and Alessi & Koenig, LLC
("Alessi & Koenig" and collectively with BNYM
and LVDG, the "Parties"), by and through their
respective counsel, hereby stipulate to allow Plaintiff to
file a First Amended Complaint ("FAC") as follows:
WHEREAS,
on March 4, 2016, Plaintiff filed its Complaint (ECF No. 1)
("Complaint");
WHEREAS,
no party has answered the Complaint, however both LVDG and
Alessi & Koenig have appeared in the action (ECF No. 12
and ECF No. 14);
WHEREAS,
the Parties agree to allow Plaintiff to file the FAC, a copy
of which is attached hereto as Exhibit 1;
WHEREAS
this request is not made for purposes of delay and is
supported by good cause;
NOW,
THEREFORE, in consideration of the foregoing, and for good
cause, IT IS HEREBY STIPULATED AND AGREED, by and between the
Parties as follows:
1.
Plaintiff shall file its FAC within five (5) days of this
Order;
2.
Alessi & Koenig and LVDG shall file a response to the FAC
within thirty (30) days thereafter.
IT IS
SO STIPULATED.
ORDER
IT
IS SO ORDERED.
EXHIBIT
1
FIRST
AMENDED COMPLAINT
Plaintiff,
The Bank of New York Mellon, fka The Bank of New York as
Successor in Interest to JP Morgan Chase Bank NA as Trustee
for Structured Asset Mortgage Investments II Inc. Bear
Stearns ALT-A Trust 2005-9, Mortgage Pass-Through
Certificates, Series 2005-9 ("BNYM" or
"Plaintiff), by and through its counsel, Snell &
Wilmer L.L.P., submits this First Amended Complaint and
states as follows:
PARTIES,
JURISDICTION, AND VENUE
1.
Plaintiff BNYM is the beneficiary of a mortgage loan secured
by a Deed of Trust recorded on or about August 5, 2005,
against the real property located at 10912 Fishers Island
Street, Las Vegas, Nevada 89141, APN 177-31-714-009 (the
"Property").
2. Upon
information and belief, Defendant Las Vegas Development
Group, LLC ("LVDG") is a Nevada limited-liability
company doing business in Clark County, Nevada.
3. Upon
information and belief, Defendant Royal Highlands Street and
Landscape Maintenance Corporation (the "HO A") is a
Nevada non-profit corporation doing business in, and with its
principal place of business in, Clark County, Nevada.
4.
Defendant Alessi & Koenig, LLC ("Alessi") is a
Nevada limited-liability company doing business in Clark
County, Nevada.
5. Upon
information and belief, Defendant Airmotive Investments, LLC
("Airmotive") is a Nevada limited-liability company
doing business in Clark County, Nevada.
6. This
Court has jurisdiction over the counts of the present action
pursuant to 28 U.S.C. § 1331.
7. This
Court has supplemental jurisdiction pursuant to 28 U.S.C.
§ 1367(a) over Plaintiffs claims arising under the laws
of the State of Nevada, because those claims are related to
Plaintiffs claims under federal law, form part of the same
case or controversy, and are derived from a common nucleus of
operative facts.
8.
Venue is proper in this district because Defendants reside
and conduct business within this district, as provided in 28
U.S.C. § 1391(b)(1). Alternatively, venue is proper in
this district because a substantial part of the events or
omissions giving rise to the claim occurred in this judicial
district, as provided in 28 U.S.C. § 1391(b)(2).
9. This
Court has personal jurisdiction over Defendants because
Defendants reside and conduct business within this district
and the State of Nevada.
GENERAL
ALLEGATIONS
10.
This case is about the constitutionality of Nevada Revised
Statute ("NRS") 116.3116, both on its face and as
applied. In particular, it concerns the purported
extinguishment of BNYM's Deed of Trust-and also a large
debt owed to BNYM-by the foreclosure of a small
homeowners' association lien on the Property, though the
mortgage debt came before the lien.
11.
Chapter 116 of the Nevada Revised Statutes generally provides
a non-judicial foreclosure scheme for a homeowners'
association to conduct a non-judicial foreclosure where the
unit owner fails to pay its monthly assessments.
12. NRS
116.3116 makes a homeowners' association lien for
assessments junior to a first deed of trust beneficiary's
secured interest in the property with one limited exception:
a homeowners' association lien is senior to a first deed
of trust beneficiary's secured interest "to the
extent of the assessments for common expenses based on the
periodic budget adopted by the association pursuant to NRS
116.3115 which would have become due in the absence of
acceleration during the 9 months immediately preceding
institution of an action to enforce the
lien[.]"NRS116.3116(2)(c).
13. The
Ninth Circuit Court of Appeals has recently declared certain
portions of Chapter 116 of the Nevada Revised Statutes
unconstitutional because the notice provisions do not meet
minimum standards of due process under the Fourteenth
Amendment to the U.S. Constitution. Bourne Valley Court
Trust v. Wells Fargo Bank, N.A., 832 F.3d 1154 (9th Cir.
2016).
14. On
or about July 25, 2005, Ronald Burnside (the
"Borrower") executed a Promissory Note
("Note") secured by a Deed of Trust in the amount
of Three Hundred Fifty-Four Thousand Two Hundred Fifty and
00/100 Dollars ($354, 250.00) in favor of Stearns Lending,
Inc. as the beneficiary, Mortgage Electronic Registration
Systems, Inc. as the nominee for the lender (Stearns), and
First American Title as the trustee.
15. The
Deed of Trust was recorded in the Office of the Clark County
Recorder ("Recorder's Office") on August 8,
2005, as Instrument Number 20050805-0004376 (the "Deed
of Trust") and was filed against the Property.
16. On
or about July 25, 2005, Borrower executed a second promissory
note in the amount of Ninety Four Thousand Four Hundred Fifty
and 00/100 Dollars ($94, 450.00) in favor of Stearns Lending,
Inc. which was secured by a second deed of trust filed on the
Property with the Recorder's Office on August 8, 2005, as
Instrument Number 20050805-0004377.
17.
Thereafter, BNYM is informed and believes, and thereon
alleges, that Borrower stopped making payments due under the
Deed of Trust and likewise stopped paying HOA dues.
18. On
or about November 5, 2010, a Notice of Delinquent Assessment
was recorded with the Recorder's Office as Instrument
Number 201011050003208. The Notice of Delinquent Assessment
was submitted by Alessi on behalf of the HOA for outstanding
amounts owed as of October 7, 2010, in the amount of $1,
314.11.
19. On
or about January 13, 2011, a Notice of Default and Election
to Sell under Homeowners Association Lien was recorded with
the Recorder's Office as Instrument Number
201101130001575. The Notice of Default and Election to Sell
under Homeowners Association Lien was submitted by Alessi on
behalf of the HOA for outstanding amounts owed as of April
19, 2011, in the amount of $2, 149.52.
20. On
or about May 4, 2011, Mortgage Electronic Registration
Systems, Inc., as nominee for Stearns Lending, Inc.,
transferred and assigned any beneficial interest in the Note
and Deed of Trust to BNYM, pursuant to that certain
Assignment of Deed of Trust, recorded in the Recorder's
Office as Instrument Number 201104040002575.
21. On
or about April 2, 2012, a Notice of Trustee's Sale was
recorded with the Recorder's Office as Instrument Number
201204020001883. The Notice of Trustee's Sale was
submitted by Alessi on behalf of the HOA pursuant to the
November 5, 2010 Notice of Delinquent Assessment and listed
outstanding amounts owed as $4, 622.25. The Notice of
Trustee's Sale set a date of sale for April 25, 2012.
22. On
or about October 2, 2012, a Notice of Violation (Lien) was
recorded with the Recorder's Office as Instrument Number
201210020001741. The Notice of Violation was submitted by
Alessi on behalf of the HOA for outstanding amounts owed as
of September 18, 2012, in the amount of $26, 200.00.
23. On
or about December 13, 2012, a Substitution of Trustee was
recorded with the Recorder's Office as Instrument Number
201212130002175 removing First American Title as the trustee
and naming Quality Loan Service Corporation as the trustee
under the Deed of Trust.
24. On
or about February 28, 2013, a Notice of Breach and Default
and of Election to Cause Sale of Real Property under Deed of
Trust was recorded with the Recorder's Office as
Instrument Number 201302280003226. The Notice of Breach and
Default and of Election to Sell under Deed of Trust was
submitted by Quality Loan Service Corporation as the trustee
for outstanding amounts owed on the Deed of Trust.
25. On
or about March 18, 2013, a Trustee's Deed upon Sale was
recorded with the Recorder's Office as Instrument Number
201303080003502. The Trustee's Deed upon Sale was
submitted by Alessi on behalf of the HOA and showed LVDG
purchased the Property for $25, 100.00 at public auction on
...