United States District Court, D. Nevada
before the court is defendant/cross-defendant Radian
Services, LLC's (“Radian”) motion to dismiss.
(ECF No. 44). Defendant/counter-claimant Trojan Capital
Investments, LLC (“Trojan”) filed a response (ECF
No. 51), to which the Radian replied (ECF No. 52).
before the court is defendant/counter-defendant PNC Financial
Services Group, Inc.'s (“PNC”) motion to
dismiss. (ECF No. 70). Trojan filed a response (ECF No. 85),
to which PNC replied (ECF No. 96).
before the court is counter-defendant BSI Financial Services,
Inc.'s (“BSI”) motion to dismiss. (ECF No.
71). Bank of America, N.A. (“BANA”) joined (ECF
No. 74), Trojan filed a response (ECF No. 86), and BSI
replied (ECF No. 92).
before the court is counter-defendant Land Home Financial
Services, Inc.'s (“Land Home”) motion to
dismiss. (ECF No. 79). Trojan filed a response (ECF No. 94),
to which Land Home replied (ECF No. 99).
before the court is defendant/counter-defendant Select
Portfolio Servicing, Inc.'s (“Select
Portfolio”) motion to dismiss. (ECF No. 81). Trojan
filed a response (ECF No. 97), to which Select Portfolio
replied (ECF No. 104).
before the court is plaintiff Rodney Mott's
(“Mott”) motion for partial summary judgment.
(ECF No. 84). Trojan and Trinity Financial Services, LLC
(“Trinity”) filed a response (ECF No. 107), to
which Mott replied (ECF No. 112).
present case involves a dispute over real property located at
609 Verde Vista Place, Las Vegas, Nevada 89145 (the
of trust was recorded on the property on December 23, 2005
securing a note in the amount of $300, 000. (ECF No. 81).
Fact relevant to the motions to dismiss
August 16, 2016, Mott filed a complaint alleging several
causes of action against six named defendants including PNC,
Select Portfolio, and Radian. (ECF No. 1). Mott's claims
against PNC and Select Portfolio were later resolved through
an acceptance of an offer of judgment. (ECF No. 37). Then on
January 25, 2017, Mott voluntarily dismissed Radian. (ECF No.
March 13, 2017, Trojan then filed a counterclaim alleging an
interest in the subject deed of trust and property. (ECF No.
38). Trojan named twelve defendants in its counterclaim,
including PNC, Select Portfolio, Radian, BSI, BANA, and Land
Home. Id. BSI and Land Home were not named as
defendants in Mott's first amended complaint. (ECF No.
to the counterclaim, Trojan is the holder of the note and the
beneficiary of the deed of trust. (ECF No. 38). The
counterclaim asserts claims for quiet title and declaratory
relief against PNC, Select Portfolio, Radian, BSI, and Land
Home. Id. The counterclaim alleges that these
parties may claim an interest in the property, the note, and
the deed of trust adverse to Trojan. Id. PNC, Select
Portfolio, BSI, and Land Home are believed by Trojan to have
been servicers of the note and deed of trust for various
brief periods beginning in October of 2010 and ending in
2014. (ECF No. 38). As to Radian, Trojan alleges that the
note and deed of trust were mistakenly assigned to Radian and
recorded in error. Id. Radian then immediately
returned the note and deed of trust to the previous holder in
recognition of the mistake. Id.
Portfolio, BSI, PNC, BANA, and Land Home have all filed
notices of disclaimer of interest in the property, the note,
and deed of trust stating that each disclaim all right, title
or interest to the property and requesting to be dismissed
from the action. (ECF Nos. 45, 53, 57, 73, 80).
instant motions, counter-defendants Radian, PNC, BSI, Land
Home, and Select Portfolio all move to dismiss Trojan's
counterclaim, as none of the counter-defendants claim an
interest in the property. (ECF Nos. 44, 70, 71, 79, 81).
Facts pertaining to the motion for partial summary
December 16, 2005, Mott signed the note evidencing the loan
with First Franklin, a division of National City Bank of
Indiana (“First Franklin”). (EC F No. 84).
Mott's payment obligations on the note were secured by
the deed of trust, which was recorded on December 23, 2005.
Id. Mott has not made payments on the note since
November 1, 2008. (ECF No. 107). While Mott alleges his
obligations under the note were forgiven in 2009, Trojan and
Trinity claim they have no records or past communications
from Mott's past lenders, trust deed beneficiaries, or
loan servicers that the debt had ever been paid, compromised,
canceled, eliminated, or excused. (ECF Nos. 84, 107).
October 3, 2007, an assignment of deed of trust was executed
between MERS, as nominee for First Franklin, and Radian. (ECF
No. 84). This document purportedly transferred both the note
and deed of trust to Radian. Id. This assignment was
not recorded until more than eight years later, on December
23, 2015. Id.
alleges that the note fails to demonstrate that Trinity or
Trojan ever acquired an interest in the enforcement of its
terms. (ECF No. 84). The note contains only an undated
endorsement in which First Franklin paid the note to the
order of First Franklin Financial Corporation (“First
Franklin Financial”) and another endorsement indicating
that First Franklin Financial paid the note to the order of
Radian. Id. There is no subsequent endorsement from
Radian to Trinity, nor an endorsement in blank converting the
note into bearer paper. Id. Further, there is no
allonge attached to the note indicating that Trinity acquired
an interest in the note. Id.
and Trinity allege that First Franklin Financial, by error or
mistake, made the note transferrable to Radian by mistakenly
inserting Radian in the blank endorsement, and also
mistakenly assigned the corresponding deed of trust to
Radian, which was then recorded in error. (ECF No. 107). They
further allege that the note and deed of trust were never
transferred and placed in Radian's possession or, if so,
were immediately returned. Id. Nonetheless, the
error was not corrected. Id. Trinity claims to have
made several attempts to obtain an assignment of the deed of
trust from Radian, but Radian did not respond. Id.
Accordingly, Trinity executed the loss affidavit.
December 23, 2015, the same day Frist Franklin's
assignment to Radian was recorded, Don A. Madden, president
of Trinity, recorded an affidavit regarding lost or misplaced
assignment (the “loss affidavit”). (ECF No. 84).
Madden affirmed that Trinity purchased the note and deed of
trust, but that the original assignment from Radian to
Trinity “has been lost, destroyed, or misplaced and
cannot be located for the recording.” Id. at
7. The note and deed of trust was one of approximately 159
received by Trinity on March 13, 2015. (ECF No. 107).
August 12, 2015, as part of a purchase of over 75 loans by
Trojan from Trinity, Trinity transferred the note and deed of
trust. (ECF No. 107). On January 16, 2016, the assignment of
the deed of trust to Trojan was recorded. Id. Mott
alleges there is no indication that the note itself was also
transferred, but Trinity alleges an ...