United States District Court, D. Nevada
WELLS FARGO FINANCIAL NEVADA 2, INC., a Nevada corporation, Plaintiff,
EDDIE HADDAD, an individual; DESERT INN MOBILE FAMILY ESTATES OWNERS ASSOCIATION; a Nevada nonprofit corporation; VIAL FOTHERINGHAM LLP, an Oregon limited-liability partnership; Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Defendant Eddie Haddad's Renewed Motion to
Dismiss. ECF No. 41. Plaintiff Wells Fargo Financial Nevada
2, Inc. opposed the motion, ECF No. 42, and Defendant
replied, ECF No. 43.
matter arises from a nonjudicial foreclosure sale conducted
by a homeowners' association under Nevada Revised
Statutes (“NRS”) Chapter 116 in March 2015. ECF
sued Defendant on May 26, 2017. Id. Plaintiff asserts
six claims: (1) quiet title or declaratory relief under the
Takings Clause of the Fifth and the Fourteenth Amendment to
the federal constitution; (2) quiet title or declaratory
relief under the Due Process Clause of the Fifth and the
Fourteenth Amendment to the federal constitution; (3)
wrongful foreclosure; (4) violation of NRS 116.1113 et
seq.; (5) quiet title; and (6) unjust enrichment.
Id. Plaintiff also filed a notice of lis pendens.
ECF No. 4.
moved to dismiss the complaint on October 19, 2017. ECF No.
28. The Court dismissed the motion without prejudice and
stayed the matter on July 13, 2018, pending resolution of a
certified question before the Nevada Supreme Court. ECF No.
40. The Nevada Supreme Court issued its decision on the
certified question in August 2018.
now moves to dismiss the complaint again. ECF No. 41.
complaint alleges the following:
matter concerns the parties' interests in the property
located at 3658 Death Valley Drive, Las Vegas, NV 89122. The
property is governed by the community's recorded
Conditions, Covenants & Restrictions
(“CC&Rs”). The CC&Rs contain a mortgage
savings clause, which states that any lien on the property is
not superior to a deed of trust recorded against the
property. The community is governed by a homeowner's
association: Desert Inn Mobile Family Estates Owners
Association (“the HOA”).
12, 2006, nonparties Mary Mullinax and Ellen Mullinax
executed a promissory note for $112, 319.37. The note was
secured by a deed of trust in favor of Plaintiff as the
lender. The deed of trust therefore encumbered the property.
The deed of trust was recorded by on May 17, 2006. Plaintiff
owns the note and the deed of trust.
3, 2014, Goodman Law Offices submitted a notice of delinquent
assessment for recording on behalf of the HOA. The notice of
delinquent assessment did not state that it regarded a
super-priority lien and did not indicate in any way that it
regarded a lien superior to Plaintiff's deed of trust.
September 12, 2014, a notice of default and election to sell
real property (“notice of default”) was recorded
by Vial Fotheringham LLP on behalf of the HOA for outstanding
amounts owed. Like the notice of delinquent assessment, the
notice of default did not state that it regarded a
super-priority lien or a lien superior to Plaintiff's
deed of trust.
February 17, 2015, a notice of foreclosure sale was recorded
by Vial on behalf of the HOA for outstanding amounts owed.
The notice of foreclosure sale also failed to indicate that
the sale would foreclose on a ...