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Bank of America, N.A. v. Esplanade At Damonte Ranch Homeowners' Association

United States District Court, D. Nevada

June 29, 2018

BANK OF AMERICA, N.A., Plaintiff,
v.
ESPLANADE AT DAMONTE RANCH HOMEOWNERS' ASSOCIATION; ATC ASSESSMENT COLLECTION GROUP; THUNDER PROPERTIES, INC., Defendants.

          Michael W. McKelleb, Esq., Angius & Terry LLP, Attorneys for Defendants ESPLANADE AT DAMONTE RANCH HOA.

          Ariel E. Stern, Esq., Jamie K. Combs, Esq., Attorneys for Bank of America, N.A., as Successor by Merger to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP.

          STIPULATION AND ORDER FOR DISMISSAL OF PLAINTIFF'S MONETARY CLAIMS AGAINST DEFENDANT ESPLANADE AT DAMONTE RANCH AND ESPLANADE AT DAMONTE RANCH HOMEOWNER'S ASSOCIATION'S COUNTERCLAIMS AGAINST PLAINTIFF

         COMES NOW, Defendant ESPLANADE AT DAMONTE RANCH HOMEONWERS ASSOCIATION (“Esplanade”), by and through its counsel, Angius & Terry LLP, and plaintiff, BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP (“BANA”), by and through its counsel, AKERMAN, LLP, and hereby stipulate and agree as follows:

         1. WHEREAS, BANA filed its Complaint in this matter on March 1, 2016 (ECF No. 1), asserting claims against Esplanade for: i) declaratory relief; ii) quiet title; iii) breach of NRS 116.1113; and iv) wrongful foreclosure;

         2. WHEREAS, Esplanade filed its counterclaims against BANA in this matter on April 3, 2018 (ECF No. 54), asserting claims against BANA for: i) fraudulent misrepresentation; ii) intentional interference with prospective business advantage; iii) negligent performance of an undertaking; iv) abuse of process; v) civil conspiracy; and vi) breach of the covenant of good faith and fair dealing.

         3. WHEREAS, Esplanade having reviewed BANA's complaint in relation to its declaratory relief and quiet title claims and determined that other than ongoing obligations under certain Conditions Covenants and Restrictions (“CC&Rs”) that run with the land, Esplanade has no present interest in the property which is the subject of this action, and therefore no interest in this matter, including any interest in any determination this Court may make in relation to declaratory relief and/or quiet title, except that a determination of this Court has the potential to result in the renewal of previously held rights; nevertheless, Esplanade claims no current interest, title, or rights in relation to the subject property, except as otherwise specified above;

         4. WHERAS, to the extent Esplanade may have any legally recognized current interest, right, or title in relation to BANA's causes of action and/or claim(s) for quiet title and declaratory relief, Esplanade hereby disclaims any right, interest, or title, and therefore disclaims any interest in any determination, order, and/or judgment this Court may issue in relation to BANA's quiet title and/or declaratory relief causes of action;

         5. WHEREAS the foregoing notwithstanding, Esplanade acknowledges and agrees that even though it disclaims any interest, right, or title in relation to BANA's causes of action for quiet title and declaratory relief, Esplanade nevertheless agrees it shall be bound by any determination, order, and/or judgment this Court may issue in relation to said claims;

         6. WHEREAS, BANA, having reviewed the foregoing, agrees and verifies that it does not seek monetary relief from Esplanade in relation to its causes of action for quiet title and declaratory relief against Esplanade;

         7. WHEREAS, BANA also has alternative claims against Esplanade for monetary damages for breach of NRS 116.1113 and wrongful foreclosure. The parties deem it to be in their mutual benefit that these claims not be determined through litigation while the underlying title claims between BANA and Thunder Properties, LLC remain pending.

         8. WHEREAS, BANA and Esplanade desire that the running of any limitation periods related to the breach of NRS 116.1113 and wrongful foreclosure claims be tolled and that the limitation periods shall not run during the Tolling Period as defined below.

         9. WHEREAS, the parties agree to toll the running of the limitation periods from the commencement of the claims' filing until one (1) year following a final adjudication of the claims between BANA and Thunder in the trial court and any appeal from the trial court's determination of such claims (the "Tolling Period"), and agree to not assert any defenses based on the running of the Limitations Period during the Tolling Period. Upon expiration of Tolling Period, the Parties agree that the term of the Tolling Period shall not be included in determining any Limitations Period.

         10. THEREFORE, based upon the representations and agreements contained herein, BANA and Esplanade hereby stipulate and agree that each of BANA's claims against Esplanade be dismissed without prejudice, and each of Esplanade's counterclaims against BANA be dismissed without prejudice, with each party to bear their own fees and costs.

         11. NOW THEREFORE, Esplanade's dismissal from this action notwithstanding, Esplanade nevertheless agrees to voluntarily make its “person most knowledgeable” available for any deposition and trial on the merits in this matter and to further participate in requests for ...


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