United States District Court, D. Nevada
before the court is plaintiff Bank of New York Mellon f/k/a
The Bank of New York, as successor to JP Morgan Chase Bank,
N.A., as Trustee for the Holders of the MLMI Surf Trust,
Mortgage Loan Asset-Backed Certificates, Series
2005-AB1's (“BNYM”) motion for summary
judgment. (ECF No. 43). Defendants Elkhorn Community
Association (“the HOA”) and 7321 Wandering Street
Trust (“WST”) filed responses (ECF Nos. 44, 46),
to which plaintiff replied (ECF No. 48).
before the court is defendant WST's motion to
dismiss. (ECF No. 24). Plaintiff filed a response
(ECF No. 30), to which defendant replied (ECF No. 31).
before the court is defendant HOA's motion for summary
judgment. (ECF No. 42). Plaintiff filed a response (ECF No.
45), to which defendant replied (ECF No. 47). . . . . . . . .
case involves a dispute over real property located at 7321
Wandering Street, Las Vegas, Nevada, 89131 (the
“property”). On September 18, 2002, April Stewart
purchased the property. (ECF No. 43-1).
December 6, 2004, Stewart transferred the property to herself
and Jason McCormac (collectively, “the
borrowers”). (ECF No. 43-2). The borrowers obtained a
loan in the amount of $194, 400 from non-party United Pacific
Mortgage d/b/a Mandalay Mortgage (“UPM”) to
refinance ownership of the property. (ECF No. 43-3). The loan
was secured by a deed of trust, dated December 6, 2004, and
recorded on December 16, 2004. Id. The deed of trust
listed Mortgage Electronics Registration Systems Inc.
(“MERS”) as nominee for the lender UPM.
Id. The covenants, conditions, and restrictions
(“CC&R's”) governing the property
contained a mortgage protection clause (section 6.16). (ECF
December 20, 2010, MERS assigned the deed of trust to BNYM
via an assignment of deed of trust. (ECF No. 43-4). The
borrowers subsequently defaulted on the terms of the note and
senior deed of trust by not making a payment due on April 1,
2010, and failing to make any payments due thereafter. (ECF
March 2, 2011, non-party Angius & Terry Collections, LLC
(“Angius”), acting on behalf of the HOA, recorded
a notice of delinquent assessment lien, stating an amount due
of $711.07. (ECF No. 43-6). On April 4, 2011, Angius recorded
a notice of default and election to sell to satisfy the
delinquent assessment lien, stating an amount due of $1,
586.07. (ECF No. 43-7).
December 21, 2011, Angius recorded a notice of trustee's
sale, stating an amount due of $2, 697.40 and an anticipated
sale date of January 11, 2012. (ECF No. 43-8). On January 11,
2012, Angius, on behalf of the HOA, foreclosed on the
property. (ECF No. 43-9). At the foreclosure sale, the
You are hereby notified by the Association, the beneficiary,
through its foreclosure agent, that the opening bid does not
include the super-priority lien amount. That the
super-priority lien amount will still be a lien on the
property once the sale is completed. You are hereby being
notified by the Association, the beneficiary, through its
foreclosure agent, that said lien may affect the property,
title to the property or value of the property. The purchaser
buys this property with full knowledge and understanding of
(ECF Nos. 43-11 and 43-12).
a representative who attended the sale, and admits to hearing
a statement regarding the super-priority portion of the lien
remaining on the property after the foreclosure:
Q: Do you remember what [the auctioneer's] instructions
A: It had something to do with the opening bid did not
include the super priority amount, which seemed -- I was
wondering why their opening bid amount was so low. In other
words, it didn't seem like it included the full amount
due in the Notice of Sale.
Q: Does [the auctioneer's notice I just read] sound like
what you were talking about before, that she said something
about the super priority lien still being in place and that
(ECF No. 43-14 at 7-9) (Deposition of Jacob Lefkowitz,
30(b)(6) representative for WST). Further, WST acknowledged
the announcement in writing. (ECF No. 43-12, 43-13 and
purchased the property at the foreclosure sale for $1, 050.
(ECF No. 43-9). A trustee's deed upon sale in favor of
WST was recorded on January 13, 2012. Id. The
trustee's deed upon sale states that the HOA conveyed
“without warranty expressed or implied to [WST] that
portion of its right, title and interest secured by the
non-priority portion of its lien under NRS 116.3116.”
Id. Plaintiff alleges that at the time of
foreclosure the property had a fair market value of $77, 000.
(ECF No. 43-10).
6, 2015, plaintiff filed a complaint in this district against
the HOA and WST. See Bank of New York Mellon v. Elkhorn
Community Association et al, 2:15-cv-01272-APG-PAL
(“Elkhorn I”) (ECF No. 3). On July 22,
2015, the HOA filed a third party complaint against Angius.
Id. at (ECF No. 7). On November 20, 2015, WST filed
a motion to dismiss in that case. Id. at (ECF No.
19). Plaintiff failed to respond after the court granted two
requests for extension of time. Id. at (ECF No. 31).
The court granted WST's motion to dismiss, citing
plaintiff's failure to respond as consent to the granting
of the motion. Id. The order language reads
“IT IS HEREBY ORDERED that the motion to dismiss (Dkt.
#19) is GRANTED and this case is DISMISSED.”
November 4, 2016, plaintiff filed the underlying complaint,
alleging four causes of action: quiet title against all
defendants; breach of NRS 116.1113 against the HOA; wrongful
foreclosure against the HOA; and injunctive relief against
(ECF No. 1).
instant motions, WST moves to dismiss plaintiff's
complaint for failure to state a claim upon which relief can
be granted. (ECF No. 24). Plaintiff moves for summary
judgment on its claim for quiet title. (ECF No. 43). The
HOA moves for summary judgment on all plaintiff's claims
against the HOA. (ECF No. 42).
Failure to state a claim
may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A properly pled complaint must provide “[a]
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is ...