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Bank of New York Mellon v. Pomeroy

United States District Court, D. Nevada

March 30, 2019

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,
v.
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.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Three 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.

         II. PROCEDURAL BACKGROUND

         This 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;[1] (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, 2017. Id.

         After 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. 2018).

         Plaintiff 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.

         Defendant Casey now moves for summary judgment. ECF No. 65. Plaintiff opposed, and Defendant Casey replied. ECF Nos. 68, 73.

         III. FACTUAL BACKGROUND

         a. Undisputed Facts [2]

         This 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 provisions:

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).

         Defendant 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.[3]

         On June 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.

         On 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.

         On 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.

         The 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 Trust.

         Defendant 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.

         On 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.

         On April 16, 2010, a discharge order was entered in Defendant Pomeroy's bankruptcy matter.

         On 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, ...


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