United States District Court, D. Nevada
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2006-17, ASSET-BACKED CERTIFICATES SERIES 2006-17, Plaintiff,
EDWARD KIELTY TRUST; an entity of unknown form; CANYON TRAILS HOMEOWNERS ASSOCIATION, a Nevada non-profit corporation; TERRA WEST COLLECTIONS GROUP, LLC d/b/a ASSESSMENT MANAGEMENT SERVICES; DOE INDIVIDUALS I through X; and ROE CORPORATIONS I through X, inclusive, Defendants. EDWARD KIELTY TRUST, a Nevada Trust, Counterclaimant,
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2006-17, ASSET-BACKED CERTIFICATES SERIES 2006-17, Counterdefendant.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court are four motions: (1) Edward Kielty Trust's
(“the Trust”) Motion for Summary Judgment, ECF
No. 33; (2) Deutsche Bank National Trust Company's
(“Deutsche Bank”) Motion for Summary Judgment,
ECF No. 34; (3) Canyon Trails Homeowners Association's
(“the HOA”) Motion for Summary Judgment, ECF No.
37; and, (4) Deutsche Bank's Motion for Leave to File
Notice of Supplemental Authorities, ECF No. 49.
Court grants the Motion for Leave to File Notice of
Supplemental Authorities and considers the competing motions
for summery judgment below.
matter arises from a nonjudicial foreclosure sale conducted
by a homeowners' association under Nevada Revised
Statutes (“NRS”) Chapter 116 in 2014. ECF No. 1.
Deutsche Bank sued Defendants the Trust, the HOA, Terra West
Collections Group, LLC dba Assessment Management Services
(“Terra West”) on June 26, 2017. Id. In
the complaint, Deutsche Bank alleges the following claims:
(1) quiet title or declaratory relief under 28 U.S.C. §
2201, NRS 30.010 et seq., and NRS 40.010; (2)
declaratory relief under the Fifth and the Fourteenth
Amendments to the federal constitution; (3) quiet title under
the Fifth and Fourteenth Amendments to the federal
constitution against the Trust; (4) permanent and preliminary
injunction against the Trust; and (5) unjust enrichment; (6)
wrongful or statutorily defective foreclosure against the HOA
and Terra West; (7) negligence against the HOA and Terra
West; (8) negligence per se against the HOA and Terra West;
(9) breach of contract against the HOA; (10)
misrepresentation against the HOA; (11) breach of covenant of
good faith and fair dealing against the HOA and Terra West;
(12) tortious interference with contract against the HOA and
Terra West. On July 12, 2017, Deutsche Bank also filed
a notice of lis pendens. ECF No. 4.
August 14, 2017, the Trust answered the complaint and filed
two counterclaims against Deutsche Bank: (1) declaratory
relief or quiet title under NRS 30.010 et seq., NRS
40.010, and NRS 116.3116 and (2) preliminary and permanent
injunction. ECF No. 9. Deutsche Bank answered the
counterclaim on September 21, 2017. ECF No. 15.
October 6, 2017, Deutsche Bank moved the Clerk of the Court
for entry of default against Terra West and the HOA. ECF Nos.
19, 20. The Clerk entered default against both Defendants.
ECF No. 21. But the HOA was reinstated in the matter by the
parties' stipulation to set aside the Clerk's entry
of default as to the HOA. ECF No. 23, 24. The HOA then
answered the complaint. ECF No. 25.
three parties move for summary judgment: the Trust, ECF No.
33; Deutsche Bank, ECF No. 34, and the HOA, ECF No. 37. All
three motions are fully briefed. ECF Nos. 38-41
(oppositions); 42-43, 45 (replies).
Bank also moves for leave to file notice of supplemental
authorities. ECF No. 49. No oppositions were filed. ECF No.
51; see also docket generally.
Undisputed Material Facts
Court finds the following facts to be undisputed. This matter
concerns a property located at 9252 Ansley Court, Las Vegas,
Nevada 89148. The property sits in a community governed by
the HOA, which imposes $18 per month in homeowners
assessments. Homeowners in the community must make timely
payments of the assessments. The community is also subject to
a Declaration of Covenants, Conditions and Restrictions
(“CC&Rs”), which were recorded on April 6,
2001. The CC&Rs contain a provision that provides:
“a lien under [Section 18.3(b)] is prior to all other
liens and encumbrances on a Unite except … a first
Security Interest on the Unit recorded before the date on
which the assessment sought to be enforced becomes
25, 2006, Sellapperumage Fernando and Benetge Perera
(“Perera”) financed the purchase of the property
through GreenPoint Mortgage Funding, Inc. During the closing
process on the purchase, the escrow company issued Closing
Instructions that identified the $18 monthly assessment. The
lender also issued Closing Instructions that identified the
property as being listed in a Planned Unit Development and
that required the Title Policy “ensure that the
covenants, conditions and restrictions contain a mortgagee
protection clause and no revisionary rights.”
GreenPoint also prepared a Planned Unit Development Rider
(“PUD”), which recognized the homeowners
assessments fees and GreenPoint's ability to pay the
assessments if Perera defaulted.
promissory note executed by Perera was secured by a deed of
trust. The deed of trust was recorded on June 15, 2006 as
document 5601. It identified Mortgage Electronic Registration
Systems, Inc. (“MERS”) as acting solely as
nominee for lender and lender's successors and assigns,
as the beneficiary. It also identified Marin Conveyancing
Corp. as the trustee. The deed of trust secured the note in
the amount of $236, 000.00.
August 14, 2009, after Perera became delinquent in the
homeowner assessments, Terra West recorded a notice of
delinquent assessment on behalf of the HOA. The notice stated
$830.23 was due, which included fees and costs of collection.
The notice was not mailed return-receipt requested to the
current beneficiary of the deed of trust.
February 4, 2010, Terra West filed a notice of default and
election to sell on behalf of the HOA. The notice of default
stated the amount owed to the HOA was $1, 969.23. The total
due included fees and costs of collection and was not mailed
return-receipt requested to the current beneficiary of the
deed of trust. But the notice stated that failure to pay the
amount specified could result in the receiver losing the home
“EVEN IF THE AMOUNTS IS IN DISPUTE!”
March 8, 2010, a corporation assignment of deed of trust was
recorded. The assignment states that MERS assigned all
beneficial interests under the deed of trust to Deutsche Bank
National Trust Company, as Trustee on Behalf of the
Certificateholders of PFCA Home Equity Investment Trust,
DBALT 2004-G2 (GPM C57). A corrective corporate assignment of
deed of trust was later recorded-on November 5,
2015-correcting the assignee on the March 8, 2010 recording
to be Deutsche Bank, Plaintiff in this matter.
September 20, 2010, Perera filed for bankruptcy. Perera was
discharged from the bankruptcy proceeding on January 12,
November 8, 2011, Terra West mailed Perera a statement that
the only assessments currently due, post-bankruptcy, were
$620.75. The ledger detailing the assessments owed began on
September 20, 2010-the date Perera filed for bankruptcy.
January 20, 2012, Terra West filed a second notice of
delinquent assessment lien on behalf of the HOA. The notice
stated that $1, 198.42 was due, which included fees and
costs. It was not mailed return-receipt to the beneficiary of
the deed of trust.
6, 2012, a second notice of default and election to sell was
recorded, stating the amount due was $1, 497.12. The amount
included fees and costs. Like the other notices, it was not
mailed return-receipt requested to the beneficiary of the
deed of trust.
second notice of delinquent assessment was rescinded on
September 10, 2012. The same day, Terra West recorded a
notice of claim of amended delinquent assessment on behalf of
the HOA. The notice stated a lien amount of $3, 907.20. The
amount included fees, costs of collection, and pre-bankruptcy
and post-bankruptcy assessment. It states the lien complies
with the applicable CC&Rs. It was not mailed to the
beneficiary of the deed of trust.
second notice of default and election to sell was rescinded
on October 12, 2012. Terra West also recorded a notice of
default and election to sell under homeowners'
association lien that day on behalf of the HOA. The amount
stated as owed was $3, 857.67 (less than that claimed in the
notice recorded a month earlier). The notice included amounts
for fees and costs of collection and was not mailed
return-receipt requested to the beneficiary of the deed of
March 26, 2013, Terra West sent a statement of account to the
servicer for Deutsche Bank's processor-in-interest, Bank
of America. In the correspondence, Terra West demands $4,
473.98 in assessments, fees, and costs of collection on
behalf of the HOA.
March 28, 2013, Bank of America retained a law firm to
determine and to tender the super-priority portion of the HOA
lien. On April 4, 2013, Terra West sent the law firm an
updated statement of account. The statement included
collection fees and costs and charges for a separate lien. It
also failed to identify the super-priority portion of the
lien. An attorney from the firm then sent a check for
$248.40, covering nine months of the then monthly $27.60
assessment. Terra West received the tender on April 26, 2013,
rejecting it upon delivery from Nevada Legal Wings- the
runner. The rejection slip did not state corresponding with
the running service did not provide Terra West's reason
for the rejection. But no evidence exists to suggest ...