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HSBC Bank USA, National Association v. Underwood Partners, LLC

United States District Court, D. Nevada

March 25, 2019

HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR DEUTSCHE ALT-A SECURITIES INC. MORTGAGE LOAN TRUST, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-4, Plaintiff,
v.
UNDERWOOD PARTNERS, LLC; NV EAGLES, LLC; SPANISH STEPS LAKESIDE HOMEOWNERS ASSOCIATION; and HAMPTON & HAMPTON COLLECTIONS, LLC, Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRCIT JUDGE

         I. INTRODUCTION

         Before the Court are Defendant Spanish Steps Lakeside Homeowners Association's Renewed Motion to Dismiss (ECF No. 54), Spanish Steps Lakeside Homeowners Association's Renewed Motion for Summary Judgment (ECF No. 55), and Plaintiff's Renewed Motion for Summary Judgment against Defendants Underwood Partners, LLC and Nevada Eagles, LLC (ECF No. 56).

         In the complaint filed February 13, 2017, Plaintiff states five causes of action: (1) Quiet Title/Declaratory Relief Pursuant to 28 U.S.C. § 2201, NRS 30.010 et seq., and NRS 40.010; (2) Declaratory Relief Under Amendments V and XIV to the United States Constitution; (3) Quiet Title Under the Amendments V and XIV to the United States Constitution; (4) Permanent and Preliminary Injunction; and (5) Unjust Enrichment. ECF No. 1. For the reasons stated below, the Court grants the Renewed Motion to Dismiss as to Plaintiff's first clause of action. The Court denies Plaintiff's summary judgment motion and denies Spanish Steps's summary judgment motion as to Plaintiff's declaratory relief claim regarding tender and the related equitable claim to set aside the foreclosure based upon tender. The grants summary judgment in favor of Spanish Steps on all remaining claims.

         II. FACTUAL BACKGROUND

         a. Alleged Facts

          The Court summarizes the facts alleged in Plaintiff's complaint. ECF No. 1.

         On or about May 19, 2005, nonparty Matthew P. Gardner purchased a property located at 276 Big Horn Drive, Boulder City, Nevada 89005 (APN 181-33-814-002) (“the Property”). The Deed of Trust executed by Gardner identified GreenPoint Mortgage Funding, Inc. as the Lender, Marin Conveyancing Corp. as the Trustee, and Mortgage Electronic Registration Systems, Inc. (“MERS”) solely as a nominee for Lender and Lender's successors and assigns, securing a loan in the amount of $256, 800.00. On August 25, 2009, a Corporation Assignment of Deed of Trust was recorded in which all beneficial interest in the Deed of Trust was assigned to Plaintiff HSBC Bank USA, National Association, as Trustee for the Certificateholders for the Mortgage Pass-Through Certificates, Series 2005-4.

         On August 4, 2009, a Notice of Delinquent Assessment Lien (“HOA Lien” or “NOL”) was recorded against the Property by Defendant Hampton & Hampton Collections, LLC (“Hampton & Hampton”) on behalf of Defendant Spanish Steps Lakeside Homeowners Association (“Spanish Steps”). On December 14, 2012, a Notice of Default and Election to Sell Real Property (“NOD”) to Satisfy Delinquent Assessment Lien was recorded against the Property by Hampton & Hampton on behalf of Spanish Steps, stating that the amount due as of December 11, 2012 was $8, 489.00. On April 4, 2013, a Notice of Trustee's Sale (“NOS”) was recorded against the Property by Hampton & Hampton on behalf of Spanish Steps, stating that the amount due as of April 4, 2013 was $9, 733.00. The recorded notices included improper fees and costs and did not identify the super-priority portion of the lien.

         A nonjudicial foreclosure sale of the Property occurred on May 21, 2013 (the “HOA Sale”), to Defendant Underwood Partners, LLC for $17, 000.00. The Trustee's Deed Upon Sale stated that the amount of the unpaid debt together with costs at the time of the HOA Sale was $9, 917.00. On or about September 18, 2013, Underwood Partners conveyed its interest in the Property, if any, to Defendant NV Eagles, LLC.

         b. Undisputed Facts [1]

         The Court finds that Plaintiff's alleged facts are undisputed. That Court further finds the following facts to be undisputed.

         Miles, Bauer, Bergstorm & Winters, LLP (“Miles Bauer”), representing Plaintiff's predecessor in interest (MERS as nominee for Bank of America, N.A.), sent a letter to Hampton & Hampton dated January 17, 2013. ECF No. 55, Exhibit 8-1. The letter requested the status of an HOA lien foreclosure sale and offered to pay the previous nine months of assessments pursuant to NRS 116.3116(2)(b). Id. On January 22, 2013, Miles Bauer sent a fax to Hampton & Hampton requesting “a full payoff for the HOA arrears as they currently exist.” ECF No. 55, Exhibit 8-3.

         On January 25, 2013, Hampton & Hampton sent a fax to Miles Bauer with a letter and statement of account indicating that the amount due for nine months of assessments on the Property was $1, 566.00. ECF No. 55, Exhibit 8-2. On January 29, 2013, Hampton & Hampton sent a fax to Miles Bauer with a letter and statement of account indicating that the total amount due on the Property was $10, 665.00. ECF No. 55, Exhibit 8-4.

         On February 13, 2013, Miles Bauer provided a cashier's check to Hampton & Hampton for $1, 566.00 on behalf of Plaintiff's predecessor. ECF No. 55, Exhibit 8-5. Hampton & Hampton accepted the payment and applied it to the outstanding $10, 655.00 balance.

         III.PROCEDURAL BACKGROUND

         Plaintiff filed its Complaint on February 13, 2017. ECF No. 1. Defendants NV Eagles, Underwood Partners, and Spanish Steps filed first Motions to Dismiss on March 28, 2017. ECF Nos. 5, 6. The Court entered a scheduling order on April 7, 2017, with discovery due by September 25, 2017 and dispositive motions due by October 25, 2017. ECF No. 14. Defendant Hampton & Hampton filed its Answer to the Complaint on April 18, 2017. ECF No. 17.

         Plaintiff and Defendants Spanish Steps, NV Eagles, and Underwood Partners filed Motions for Summary Judgment on October 27, 2017 pursuant to the Court's extension of the deadline. ECF Nos. 30, 32, 33. Defendants NV Eagles and Underwood Partners filed an additional Motion to Dismiss on February 5, 2018. ECF No. 46.

         On March 23, 2018, the Court issued a stay in the case pending the Nevada Supreme Court's decision on a certified question of law regarding NRS 116's notice requirement in Bank of N.Y. Mellon v. Star Hill Homeowners Ass'n, No. 2:16-cv-02561-RFB-PAL and denied all pending motions without prejudice. ECF No. 49. The Nevada Supreme Court published an answer to the certified question on October 3, 2018. SFR Investments Pool 1, LLC v. Bank of New York Mellon, 422 P.3d 1248 (Nev. 2018).

         Defendant Spanish Steps filed the instant Renewed Motion to Dismiss and Renewed Motion for Summary Judgment on August 23, 2018. ECF No. 54. Plaintiff filed the instant Renewed Motion for Summary Judgment on August 24, 2018. ECF No. 56.

         IV.LEGAL ...


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