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Carrington Mortgage Services, LLC v. Tapestry at Town Center Homeowners Association

United States District Court, D. Nevada

March 31, 2019

CARRINGTON MORTGAGE SERVICES, LLC, Plaintiff,
v.
TAPESTRY AT TOWN CENTER HOMEOWNERS ASSOCIATION; TERRA WEST COLLECTIONS GROUP LLC; SFR INVESTMENTS POOL 1, LLC; DOE INDIVIDUALS I-X, inclusive; and ROE CORPORATIONS I-X, inclusive, Defendants. SFR INVESTMENTS POOL 1, LLC, Counter-Claimant/Cross-Claimant,
v.
CARRINGTON MORTGAGE SERVICES, LLC; ESTHER MARIN, an individual, Counter-Defendant/Cross-Defendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRCIT JUDGE

         I. INTRODUCTION

         Before the Court are Defendant/Counter-Claimant/Cross-Claimant SFR Investments Pool 1, LLC's (“SFR's”) Renewed Motion for Summary Judgment (ECF No. 50), Plaintiff/Counter-Defendant Carrington Mortgage Services, LLC's (“Carrington's”) Renewed Motion for Summary Judgment (ECF No. 51), and Defendant Tapestry at Town Center Homeowners Association's (“the HOA's”) Counter Motion for Summary Judgment (ECF No. 56).

         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 all three motions.

         II. FACTUAL BACKGROUND

         a. Undisputed Facts

         The Court finds that the following facts are undisputed.

         On or about February 27, 2008, Esther Marin and Rosa Linares (“the borrowers”) purchased property located at 9141 Captivating Avenue, Las Vegas, Nevada 89149 (“the Property”). The borrowers financed ownership of the property by way of a loan in the amount of $162, 649.00 evidenced by a note and secured by a deed of trust (the senior deed of trust) recorded February 29, 2008.

         The borrowers failed to pay the HOA all amounts due to it. On May 5, 2010, the HOA, through its agent Assessment Management Services (“AMS”), recorded a notice of claim of delinquent assessment lien. Per the notice, the amount due to the HOA was $1, 169.04, which includes assessments, late fees, special assessments, fines, collection fees, trustee fees, and interest.

         On April 23, 2012, the HOA, through its agent AMS, recorded a notice of default and election to sell under homeowners association lien. The notice states the amount due to the HOA was $3, 130.42, which may include assessments, late fees, special assessments, collection fees, trustee fees, and interest.

         On February 26, 2014, the HOA, through its agent AMS, recorded a notice of foreclosure sale. The notice states the amount due to the HOA was $7, 118.63, which may include assessments, late fees, special assessments, collection fees, and interest.

         The HOA foreclosed on the property on or about March 21, 2014. A foreclosure deed in favor of SFR was recorded April 2, 2014.

         b. Disputed Facts

          The parties dispute whether the Property is insured by the Federal Housing Administration (“FHA”), whether the deed of trust was properly assigned to Carrington, and whether tender was offered and/or rejected.

         Regarding tender, Carrington alleges that Miles, Bauer, Bergstrom and Winters on behalf of Bank of America sent the HOA and its foreclosure agent AMS a letter dated May 23, 2012 requesting sufficient information to identify nine months' of common assessments and offering to pay that sum. Carrington alleges that the HOA and AMS refused to identify the super-priority amount, but provided a ledger indicating the monthly assessment amount was $66.00. Nine months of monthly assessments totals $594, and Bank of America allegedly tendered $988.00 to the HOA to satisfy the super-priority lien-nearly $400.00 more than the actual super-priority amount. AMS allegedly rejected the payment.

         III. PROCEDURAL BACKGROUND

         Carrington filed its Complaint on April 13, 2017. ECF No. 1. The HOA filed an answer on May 24, 2017. ECF No. 11. SFR filed on answer on June 26, 2017, with a cross-claim against Esther Marin and a counter-claim against Carrington. ECF No. 22.

         On June 26, 2017, the Court entered a scheduling order. ECF No. 20.

         Carrington filed an answer to the counter-claim on June 30, 2017. ECF No. 24. Terra West Collections Group LLC filed an answer on July 10, 2017. ECF No. 25.

         Discovery closed on November 20, 2017. ECF No. 20. On December 8, 2017, the Clerk of Court entered default as to Esther Marin. ECF No. 36.

         On December 18, 2017, Carrington filed a Motion for Summary Judgment. ECF No. 38. On December 20, 2017, SFR filed a Motion for Summary Judgment. ECF No. 39.

         On July 12, 2018, the Court denied all pending motions without prejudice and issued a stay in the case pending the Nevada Supreme Court's decision on a certified question of law regarding NRS 116's notice requirement in Bank of N.Y. Mellon v. Star Hill Homeowners Ass'n, No. 2:16-cv-02561-RFB-PAL. ECF No. 49. The Nevada Supreme Court published an answer to the certified question on August 2, 2018. SFR Investments Pool 1, LLC v. Bank of New York Mellon, 422 P.3d 1248 (Nev. 2018).

         On August 23, 2018, SFR and Carrington each filed the instant Renewed Motions for Summary Judgment. ECF Nos. 50, 51. On September 14, 2018, the HOA filed the instant Counter Motion for Summary Judgment. ECF No. 56.

         The Court now lifts the stay in this case and considers all pending motions.

         IV. ...


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