Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Deutsche Bank National Trust Co. v. Edward Kielty Trust

United States District Court, D. Nevada

March 31, 2019

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2006-17, ASSET-BACKED CERTIFICATES SERIES 2006-17, Plaintiff,
v.
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,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2006-17, ASSET-BACKED CERTIFICATES SERIES 2006-17, Counterdefendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before 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.

         The Court grants the Motion for Leave to File Notice of Supplemental Authorities and considers the competing motions for summery judgment below.

         II. PROCEDURAL BACKGROUND

         This matter arises from a nonjudicial foreclosure sale conducted by a homeowners' association under Nevada Revised Statutes (“NRS”) Chapter 116 in 2014. ECF No. 1.

         Plaintiff 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.[1] On July 12, 2017, Deutsche Bank also filed a notice of lis pendens. ECF No. 4.

         On 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.

         On 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.

         Now, 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).

         Deutsche 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.

         III.FACTUAL BACKGROUND

         a. Undisputed Material Facts

         The 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 delinquent.”

         On May 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.

         The 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.

         On 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.

         On 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!”

         On 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.

         On September 20, 2010, Perera filed for bankruptcy. Perera was discharged from the bankruptcy proceeding on January 12, 2011.

         On 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.

         On 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.

         On June 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.

         The 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.

         The 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 trust.

         On 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.

         On 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.