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Bank of New York Mellon v. Mission Del Rey Homeowners Association

United States District Court, D. Nevada

March 31, 2019

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2006- 23CB, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006- 23CB, Plaintiff,
v.
MISSION DEL REY HOMEOWNERS ASSOCIATION; SFR INVESTMENTS POOL 1, LLC, Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRCIT JUDGE

         I. INTRODUCTION

         Before the Court are SFR Investments Pool 1, LLC's (“SFR's”) Renewed Motion to Dismiss (ECF No. 35), Mission Del Rey Homeowners Association's (“Mission Del Rey's”) Motion for Partial Dismissal or Alternatively, Motion for Partial Summary Judgment (ECF No. 36), The Bank of New York Mellon, f/k/a The Bank of New York as Trustee For The Certificateholders of CWALT, Inc., Alternative Loan Trust 2006-23CB, Mortgage Pass-Through Certificates, Series 2006-23CB's (“BNY's”) Countermotion for Partial Summary Judgment (ECF No. 40), and SFR's Motion to Strike Plaintiff's Counter-Motion for Partial Summary Judgment (ECF No. 49).

         In the complaint filed August 14, 2018, BNY seeks declaratory relief and injunctive relief on the basis of a quiet title claim. ECF No. 1. For the reasons stated below, the Court grants in part and denies in part SFR's and Mission Del Rey's motions to dismiss. The Court denies SFR's motion to strike, but grants SFR additional time to response to BNY's Counter-Motion for Partial Summary Judgment, which will remain pending.

         II. FACTUAL BACKGROUND

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

         On or about May 16, 2006, Linda R. Kabiling and Gil David Kabiling purchased property located at 805 El Cabo Rey Avenue, Las Vegas, NV 89081 (“the Property”). The Kabilings financed ownership of the property by way of a loan from New Freedom Mortgage Corporation in the amount of $244, 395.00 evidenced by a note and secured by a deed of trust (the senior deed of trust) recorded May 26, 2005. The senior deed of trust was later assigned to BNY via an assignment of deed of trust.

         On September 20, 2011, Mission Del Rey, through its agent, Nevada Association Services, Inc. (“NAS”), recorded a Notice of Delinquent Assessment Lien. Per the notice, the amount due to Mission Del Rey was $1, 524.10, of which $826.10 represented late fees, collection fees and interest.

         On November 9, 2011, Mission Del Rey, through its agent NAS, recorded a Notice of Default and Election to Sell to Satisfy the Delinquent Assessment Lien. The notice stated the amount due to Mission Del Rey was $2, 507.20, but did not specify whether it includes dues, interest, fees and collection costs in addition to assessments. The notice also did not specify the super-priority amount claimed.

         On or about December 28, 2011, Bank of America, N.A., as then-servicer of the loan, requested a ledger from Mission Del Rey through its agent NAS, identifying the super-priority amount allegedly owed to Mission Del Rey. Mission Del Rey refused to provide a ledger.

         Bank of America and its counsel calculated the super-priority amount claimed by Mission Del Rey by referencing a ledger previously provided by the Mission Del Rey for another property. Based on the monthly assessment amount identified in Mission Del Rey's ledger, Bank of America accurately calculated the true super-priority amount as $486.00, the sum of nine-months of common assessments as identified in Mission Del Rey's ledger, and tendered that amount to Mission Del Rey through its agent NAS on January 19, 2012. Mission Del Rey refused Bank of America's tender.

         On March 27, 2012, Mission Del Rey, through its agent NAS, recorded a Notice of Trustee's Sale. The trustee's sale was scheduled for April 20, 2012. The notice stated the amount due to Mission Del Rey was $3, 666.12, which included reasonable estimated costs, expenses and advances. The notice did not specify the super-priority amount claimed.

         On September 6, 2013, Mission Del Rey, through its agent NAS, recorded a Notice of Trustee's Sale. The trustee's sale was scheduled for September 30, 2013. The notice states the amount due to Mission Del Rey was $4, 023.44, which includes reasonable estimated costs, expenses and advances. The notice did not specify the super-priority amount claimed.

         Mission Del Rey foreclosed on the property on or about September 30, 2013. A foreclosure deed in favor of SFR was recorded October 7, 2013. Upon information and belief, the sale price at the September 30, 2013 foreclosure sale was $9, 000.00.

         III. PROCEDURAL BACKGROUND

         BNY filed its Complaint on August 14, 2017. ECF No. 1.

         On November 9, 2017, Mission Del Rey filed a Motion for Partial Dismissal or Alternatively, Motion for Partial Summary Judgment. ECF No. 14.

         The Court entered a scheduling order on January 31, 2018. ECF No. 22. SFR filed a Motion to Dismiss on May 7, 2018. ECF No. 31. Discovery closed on June 29, 2018. ECF No. 28.

         On July 13, 2018, the Court denied Mission Del Rey's pending motion 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. 34. 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 filed the instant Renewed Motion to Dismiss. ECF No. 35. On August 24, 2018, Mission Del Rey filed the instant Renewed Motion for Partial Dismissal or Alternatively, Motion for Partial Summary Judgment and joined SFR's Renewed Motion to Dismiss. ECF Nos. 36, 37. On September 13, 2018, BNY filed the instant Counter-Motion for ...


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