Bank of New York Mellon v. SFR Investments Pool 1, LLC

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRCIT JUDGE

         I. INTRODUCTION

         Before 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. 40).

         In the 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.

         II. FACTUAL BACKGROUND

         The 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.

         On or 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.

         The 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 the HOA.

         On 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.

         On May 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.

         After 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.

         On 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.

         The HOA non-judicially foreclosed on the Property on December 4, 2013, selling the Property to Defendant for $14, 000.00.

         In none 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 ...