United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-OC7, MORTGAGE PASS-THROUGH CERTIFICATES, Plaintiff,
SFR INVESTMENTS POOL 1, LLC, Defendant.
RICHARD F. BOULWARE, II UNITED STATES DISTRCIT JUDGE
the Court are Defendant's Motion to Dismiss (ECF No. 11),
Plaintiff's Motion for Partial Summary Judgment (ECF No.
35), and Defendant's Motion for Summary Judgment (ECF No.
complaint filed February 28, 2018, Plaintiff seeks
declaratory relief and injunctive relief on the basis of a
quiet title claim. ECF No. 1. For the reasons stated below,
the Court grants the Motion to Dismiss and dismisses
Plaintiff's complaint in its entirety.
Court summarizes the facts alleged in Plaintiff's
complaint. ECF No. 1. The Court also takes judicial notice of
the publicly filed documents attached to the submissions
regarding the motion to dismiss.
about April 12, 2006, Oliver J. Siores
(“Borrower”) purchased real property located at
6906 Graceful Cloud Avenue, Henderson, NV 89011-4980; Parcel
No. 161-35-213-104 (the “Property”). Borrower
financed ownership of the property by way of loan in the
amount of $135, 000.00 secured by a Deed of Trust dated April
12, 2006, executed in favor of non-party the First National
Bank of Arizona. The Deed of Trust was assigned to Plaintiff
on January 7, 2010. Siores defaulted under the terms of the
note and Deed of Trust by failing to make all payments due.
Property was encumbered by a homeowners' association lien
in favor of the Mesa Homeowners Association
(“HOA”). Upon information and belief, Borrower
purportedly failed to pay the HOA all amounts alleged due to
October 16, 2012, the HOA, through its agent, Alessi &
Koenig, LLC (“Alessi”), recorded a Notice of
Delinquent Assessment Lien. This Notice stated the amount due
to the HOA was $4, 140.65, consisting of $4, 065.65 in
collection and/or attorneys' fees, assessments, interest,
late fees, and service charges and $75.00 in collection
costs. The Notice did not identify the super-priority amount
claimed by the HOA.
6, 2013, the HOA, through Alessi, filed a Notice of Default
and Election to Sell Under Homeowners Association Lien. This
Notice of Default stated the amount due to the HOA was $5,
634.11 but did not identify the super-priority amount claimed
by the HOA.
the Notice of Default was recorded, Bank of America, who then
serviced the loan secured by the Deed of Trust, through
counsel at Miles Bauer Bergstrom & Winters (“Miles
Bauer”), contacted Alessi and requested a payoff ledger
detailing the amounts owed in an attempt to determine the
super-priority amount. Alessi sent a payoff ledger, and
informed Bank of America that the last nine months of
delinquent assessments for the Property-the super-priority
amount- was $630.00. Accordingly, Bank of America, through
Miles Bauer, tendered payment of $630.00 to Alessi to satisfy
the super-priority portion of the HOA's lien on July 11,
2013. Alessi rejected the payment.
November 5, 2013, the HOA, through Alessi, recorded a Notice
of Trustee's Sale, setting the sale for December 4, 2013.
This Notice of Sale stated the amount due to the HOA was $7,
818.81. The Notice of Sale did not identify the
super-priority amount claimed by the HOA.
non-judicially foreclosed on the Property on December 4,
2013, selling the Property to Defendant for $14, 000.00.
of the recorded documents nor in any notice did the HOA or
Alessi specify whether it was foreclosing on the purported
super-priority portion of its lien, if any, or on the
sub-priority portion of its lien. In none of the recorded
documents nor in any notice did the HOA or Alessi specify
that the Deed of Trust would be extinguished by the HOA's
foreclosure. The HOA's sale of the ...