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Carrington Mortgage Services, LLC v. Silverado Place Homeowners' Association

United States District Court, D. Nevada

March 30, 2019

CARRINGTON MORTGAGE SERVICES, LLC, Plaintiff,
v.
SILVERADO PLACE HOMEOWNERS' ASSOCIATION; SATICOY BAY LLC SERIES 10384 MIDSEASON MIST; DOE INDIVIDUALS I-X, inclusive, and ROE CORPORATIONS I-X, inclusive, Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRCIT JUDGE

         I. INTRODUCTION

         Before the Court are Defendant Saticoy Bay LLC Series 10384 Midseason Mist.'s (“Saticoy Bay's”) Second Motion to Dismiss (ECF No. 40), Plaintiff Carrington Mortgage Services, LLC's (“Carrington's”) Renewed Motion for Summary Judgment (ECF No. 41), and Saticoy Bay's Counter-Motion for Summary Judgment (ECF No. 46).

         In the complaint filed May 9, 2017, Carrington seeks quiet title/declaratory judgment and injunctive relief based on allegations of wrongful foreclosure violating the federal constitution and Nevada statutes. ECF No. 1.

         For the reasons stated below, the Court grants in part and denies in part Saticoy Bay's motion to dismiss. As to the theories not found to be foreclosed in the motion to dismiss analysis, the Court denies both Carrington's and Saticoy Bay's motions for summary judgment.

         II. FACTUAL BACKGROUND

         a. Alleged Facts

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

         On or about January 21, 2009, Anthony J. Spradlin purchased a residential property located at 10384 Midseason Mist Street, Las Vegas, Nevada (“the Property”). Spradlin financed ownership of the Property by way of a loan in the amount of $114, 305.00 evidenced by a note and secured by a senior deed of trust recorded March 3, 2009.

         On June 27, 2012, the Silverado Place Homeowners' Association (“Silverado”), through its agent Leach Johnson Song & Gruchow (“Leach Johnson”), recorded a Notice of Delinquent Assessment Lien. Per the notice, the amount due to Silverado was $1, 072.62.

         On August 7, 2012, Silverado, through its agent Leach Johnson, recorded a Notice of Default and Election to Sell to Satisfy Notice of Delinquent Assessment Lien. The notice stated the amount due to Silverado was $1, 850.28.

         These recorded documents did not specify whether Silverado was foreclosing on the super-priority portion of its lien, nor provided notice of the purported super-priority lien amount, where to pay the amount, how to pay the amount, or the consequences for failure to do so.

         On or about September 10, 2012, prior deed of trust beneficiary and loan servicer Bank of America, N.A. offered to pay the super-priority portion of Silverado's lien. Silverado ignored Bank of America's offer to tender and misrepresented the applicable law in response.

         On November 21, 2013, Silverado, through its agent Leach Johnson, recorded a Notice of Foreclosure Sale. The notice stated the amount due to Silverado was $4, 069.95. This notice similarly did not specify whether Silverado was foreclosing on the super-priority portion of its lien, nor provided notice of the purported super-priority lien amount, where to pay the amount, how to pay the amount, or the consequences for failure to do so.

         Silverado foreclosed on the property on or about September 15, 2014. A foreclosure deed in favor of Saticoy was recorded September 25, 2014.

         On September 24, 2015, the senior deed of trust was assigned to Carrington.

         b. Undisputed Facts [1]

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

         Counsel for prior loan servicer and deed of trust beneficiary Bank of America, Rock Jung, Esq. of Miles Bauer Bergstrom & Winters, LLP, sent Silverado, through Leach Johnson, a letter dated September 10, 2012. Jung stated that Bank of America was offering to pay the nine months of common assessments pre-dating the Notice of Default, but that the nine-month sum was unknown. He requested presentation of adequate proof of the nine-month sum and asked that Silverado refrain from taking further action to enforce the lien until the matter was resolved.

         John E. Leach, Esq. of Leach Johnson, responded via facsimile dated September 27, 2012. He represented that the nine-month super-priority is triggered by the foreclosure sale and survives foreclosure. He denied a legal obligation to communicate the amount of the nine-month sum and refused to state the amount of the lien until the entire balance due and owing was received.

         Following this communication, no monies were paid from Bank of America to Silverado.

         c. ...


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