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Springland Village Homeowners Association v. Pearman

United States District Court, D. Nevada

July 23, 2018

SPRINGLAND VILLAGE HOMEOWNERS ASSOCIATION, a Nevada Non-Profit Cooperative Corporation, Plaintiff,
v.
JENNIE M. PEARMAN, et ah, Defendants. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff,
v.
DWIGHT CARLSON AS TRUSTEE FOR PYRAMID TRIBE TR-116, Defendant. And Related Counterclaims.

          ALDRIDGE PITE, LLP Jory C. Garabedian. Esq. Attorney for Defendant Federal National Mortgage Association

          KERN & ASSOCIA TES, LTD. Karen M. Avarbe. Esq. Attorneys for Plaintiff Springland Village Homeowners Association

          STIPULATION AND ORDER TO SET ASIDE DISMISSAL WITHOUT PREJUDICE

         Defendant in the Lead Case FEDERAL NATIONAL MORTGAGE ASSOCIATION ("Fannie Mae") and Plaintiff in the Lead Case SPRINGLAND VILLAGE HOMEOWNERS ASSOCIATION ("Springland"), by and through their respective attorneys of record, hereby stipulate and agree as follows:

         1. The Lead Case is an interpleader action originally filed in the Second Judicial District Court of Nevada (Washoe County) on May 11, 2016, which seeks to disburse surplus proceeds from an NRS 116 foreclosure sale of the real property located at 2402 Sunny Slope Drive, Unit 9, Sparks, Nevada 89434 (the "Property") occurring on or about January 22, 2016 (hereinafter the "Lead Interpleader Case").

         2. Fannie Mae removed the Lead Interpleader Case to this Court on July IS, 2016 based on Fannie Mae's charter and the Ninth Circuit decision in Lightfoot v. Cendant Mortgage Corporation, 769 F.3d 681, 682 (9th Cir. 2014). (See Lead Case ECF No. 1).

         3. Prior to removal of the Lead Interpleader Case, Springland duly served the following named defendants in the Washoe County action as follows: a.) John J. Pearman as Trustee of the Jennie M. Pearman Revocable Living Trust Dated July 28, 2004 ("John Pearman"), on June 25, 2016; b.) Dawn Young as Trustee of the Jennie M. Pearman Revocable Living Trust Dated July 28, 2004 ("Dawn Young"), on June 27, 2016; c.) Shelly Pearman, individually on June 25, 2016, and as Trustee of die Jennie M. Pearman Revocable Living Trust Dated July 28, 2004 ("Shelly Pearman"), on June 27, 2016; and d.) Federal Deposit Insurance Corporation ("FDIC") on July 21, 2016. See the returned Summonses and Affidavits of Service as to the above-named defendants attached hereto as Exhibit “1”-”4” respectively, and which were filed in die Washoe County action on July 15, 2016, and as to FDIC on July 26, 2016.

         4. Prior to removal of die Lead Interpleader Case, Springland obtained an Order from the Court in the Washoe County case to serve defendant Jennie M. Pearman as Trustee of the Jennie M. Pearman Revocable Living Trust Dated July 28, 2004 ("Jennie Pearman"), via publication. See Order to serve by publication filed June 16, 2016 attached hereto as Exhibit "5". Service by publication was completed in accord with the Washoe County Court's Order, and Proof of Publication was filed on July 15, 2016 in the Washoe County action. See Exhibit "6" attached hereto.

         5. None of the Summonses and Affidavits of Service or the Proof Publication were subsequently filed in the Lead Interpleader case before this Court after removal from Washoe County.

         6. Also, the Summonses and Affidavits of Service or the Proof of Publication in the Lead Interpleader Case were not filed following this Court's Notice Regarding Intention to Dismiss Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure filed September 20, 2017 ("Notice" - ECF No. 31). As a result, the Court entered its Order dismissing the defendants identified herein without prejudice on November 2, 2017 ("Order of Dismissal without Prejudice" ECF No. 32).

         7. Springland and Fannie Mae STIPULATE AND AGREE, and it is RESPECFULLY REQUESTED, that the Court's November 2, 2017 Order of Dismissal without Prejudice be set aside pursuant as to defendants John Pearman, Dawn Young, Shelly Pearman, FDIC, and Jennie Pearman ("Dismissed Interpleader Defendants"). All these Dismissed Interpleader Defendants were duly served within the required time from the filing of the Complaint in Interpleader on May 11, 2016 in the Washoe County action. Springland, however, inadvertently did not file the Summonses and Affidavits of Service and Proof of Publication in the Lead Interpleader Case following removal to this Court of the Washoe County action or following this Court's Notice, and only filed the Summonses and Affidavits of Service and Proof of Publication in the Washoe County action.

         8. Simultaneously or immediately following the filing of this Stipulation, Springland and Fannie Mae intend to file a Stipulation to remand the Lead Interpleader Case only back to Washoe County in order to complete Springland's action to interplead and/or disburse the surplus proceeds in accord with Nevada law. In order to obtain a proper and complete order for interpleader and/or disbursement of the surplus funds under Nevada law as to all parties who were named in Washoe County action, the Order of Dismissal without Prejudice of the Dismissed Interpleader Defendants should be set aside.

         IT IS SO STIPULATED AND AGREED.

         ORDER

         Based upon the foregoing Stipulation between Fannie Mae and ...


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