United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2005-82, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-82, Plaintiff,
NIKKI M. POMEROY, CLIFFORD L. Y, INDIVIDUALLY AND AS TRUSTEE FOR GENSTAR LTD TRUST; REPUBLIC SILVER STATE DISPOSAL, INC. DBA REPUBLIC SERVICES; ANYTIME PLUMBING; PARADISE SPA, LLC; DOE INDIVIUDALS I-X, inclusive; and ROE CORPORATIONS, I-X, inclusive, Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
contested motions come before the Court: Plaintiff's
Motion to Stay Dispositive Motion Deadline or Alternatively,
Motion to Reset Dispositive Motion Deadline, ECF No. 63;
Plaintiff's Motion to Amend or Correct the Complaint, ECF
No. 64; and Defendant Clifford Casey's Renewed Motion for
Summary Judgment, ECF No. 65.
matter arises from a nonjudicial foreclosure sale conducted
under Chapter 116 of the Nevada Revised Statutes
(“NRS”). ECF No. 1. Plaintiff sued Defendants on
April 3, 2017, asserting the following claims: (1) Quiet
Title or Declaratory Judgment against Defendant Casey; (2)
“Judicial Foreclosure” against Defendants Nikki
Pomeroy, Paradise Spa, LLC, and Anytime
Plumbing; (3) Breach of Contract against Defendant
Pomeroy; (4) Injunctive Relief against Defendant Casey.
Id. Magistrate Judge Nancy Koppe set forth a
Scheduling Order on June 19, 2017. ECF No. 18. The Scheduling
Order set the deadline for amending pleadings for August 1,
multiple motions to amend the complaint, to dismiss the
complaint, and to stay the matter (some of which were
denied), the Court stayed this matter pending the resolution
of a certified question pending before the Nevada Supreme
Court and dismissed all pending motions without prejudice.
ECF Nos. 59, 60. The Court subsequently ordered that any
dispositive motions be refiled within twenty-one days of the
Nevada Supreme Court's decision on the certified
question. ECF No. 61. The Nevada Supreme Court issued its
decision on August 2, 2018. See SFR Investments Pool 1,
LLC v. Bank of New York Mellon, 422 P.3d 1248 (Nev.
now moves to amend the Complaint. ECF No. 64. Plaintiff also
now moves to stay the dispositive motion deadline or,
alternatively, to reset the dispositive motion deadline until
the Court resolves the pending Motion to Amend, emphasizing
that an earlier motion to amend was denied without prejudice
based on the stay. ECF No. 63. Defendant Casey opposed both
motions, ECF Nos. 66-67, and Plaintiff filed replies, ECF
Nos. 69, 70.
Casey now moves for summary judgment. ECF No. 65. Plaintiff
opposed, and Defendant Casey replied. ECF Nos. 68, 73.
Undisputed Facts 
matter concerns a property located at 54 Sawgrass Court, Las
Vegas, Nevada 89113. The property sits within a community
governed by a homeowners' association, the Estates at
Spanish Trail Association (“HOA”). In 1984, the
HOA recorded Covenants, Conditions, and Restrictions
(“CC&Rs”) that apply to the governance of the
community. The CC&Rs contain, in part, the following
A breach by an Owner of any of the covenants, conditions and
restrictions contained herein shall not affect, impair,
defeat or render invalid the lien, charges or encumbrance of
any first Mortgage made for value which may then exist on any
Lot… (Article IX, Section 7: “Mortgage
Protection Re: Breach”).
A breach of any of the covenants, conditions, restrictions or
other provisions of this Declaration shall not affect or
impair the lien or charge of any bona fide Mortgage made in
good faith and for value on any Lot; bound by the provision
of this Declaration, whether such Owner's title was
acquired by foreclosure or by a trustee's sale or
otherwise. (Article X, Section 3: Mortgage Protection).
Pomeroy executed a promissory note on August 30, 2005 to
obtain a loan for $1, 330, 000.00 to purchase the at-issue
property. The promissory note was secured by a subsequent
deed of trust (“senior deed of trust”) that was
recorded on September 2, 2005, in which Mortgage Electronic
Registration Systems, Inc. (“MERS”) was
identified as the beneficiary, acting solely as nominee for
the lender. Plaintiff is the current assignee of the senior
deed of trust.
26, 2007, Defendant Pomeroy became delinquent on her payments
under the senior deed of trust, causing a notice of default
and election to sell under deed of trust to be recorded on
behalf of Plaintiff's predecessors.
October 12, 2007, the HOA recorded a notice of delinquent
assessment lien against the property based on Defendant
Pomeroy's failure to pay the related HOA dues. The HOA
then recorded a notice of default and election to sell on
March 26, 2008. The HOA recorded its first notice of
foreclosure sale on September 9, 2008.
March 27, 2009, Defendant Pomeroy transferred the property to
Genstar Ltd Trust. The deed evidencing the transfer of the
property to Genstar Ltd Trust was recorded on April 1, 2009.
following day, the HOA sent the Genstar Ltd Trust a notice of
delinquent HOA dues. No payment was made. But Defendant Casey
began living on the property by May 27, 2009, at which time
he executed a residential lease agreement with Genstar Ltd
Pomeroy filed for bankruptcy on September 22, 2009. Her
bankruptcy petition fails to list the property as one in
which she has any interest. Her bankruptcy petition
acknowledges the promissory note as a creditor's
unsecured nonpriority claim for $1, 340, 331.00, notating
that the property was “sold by receiver.” Her
bankruptcy petition later clarifies that the property was
assigned in April 2009 for $700, 000.00. The Bankruptcy Court
granted Plaintiff's loan servicer relief from the stay to
foreclose on the property. The HOA never sought relief from
the automatic stay.
February 24, 2010, Genstar Ltd Trust transferred the property
to the Pacifica Ltd Trust with the related deed being filed
the following day. Defendant Casey is the first successor
trustee of the Pacifica Ltd Trust. On April 2, 2010, the HOA
sent notice of the delinquent HOA dues to the Pacific Ltd
Trust. Again, no payment was made.
April 16, 2010, a discharge order was entered in Defendant
Pomeroy's bankruptcy matter.
December 15, 2010, the HOA recorded another notice of
foreclosure sale. The notice states the HOA dues were
delinquent in the amount of $10, 872.00. The HOA then
foreclosed on the property on January 7, 2011. A foreclosure
deed was subsequently recorded in favor of the HOA on
February 1, 2011. HOA board members opined that the sale was
on a sub-priority lien rather than a super-priority lien,
stating in an email that the senior deed of trust “is
still in place” if the foreclosure sale was completed
but the second deed of trust was “removed.” The
same day as the foreclosure sale, ...