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LV Debt Collect, LLC v. Bank of New York Mellon

United States District Court, D. Nevada

April 3, 2019

LV DEBT COLLECT, LLC, Plaintiff,
v.
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC., CHL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-02; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; NATIONS FIRST LENDING, INC.; WELLS FARGO BANK, N.A.; and DOES 1 through 10, inclusive; ROE CORPORATIONS 1 through 10, inclusive, Defendants,

          THE LAW OFFICE OF MIKE BEEDE, PLLC MICHAEL BEEDE, ESQ. JAMES W. FOX, ESQ. Attorneys for Plaintiff, LV Debt Collect, LLC

          AKERMAN LLP DARREN T. BRENNER, ESQ. TENESA S. POWELL, ESQ. Attorneys Defendant, Bank of New York Mellon fka Bank of New York, as Trustee for the Certificate Holders, CWMBS, Inc., CHL Mortgage Pass- Through Trust 2005-02, Mortgage Pass-Through Certificates, Series 2005-02

          STIPULATION AND [PROPOSED] ORDER TO AMEND COMPLAINT AND REMAND ACTION TO STATE COURT

         Plaintiff, LV Debt Collect, LLC Plaintiff LV Debt Collect, LLC (herafter “Plaintiff”), by and through its attorneys of record, Michal N. Beede, Esq. and James W. Fox, Esq., of The Law Office of Mike Beede, PLLC, and Defendant The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-02 (herafter “BONY”), by and through its attorneys of record, Darren T. Brenner, Esq. and Tenesa S. Powell, Esq., of Akerman, LLP, stipulate and agree to the following:

1. The parties hereto stipulate to add John L. Quinnear, as Trustee of The Q Family Trust Dated November 17, 2004; John L. Quinnear in his individual capacity, Nancy L. Quinnear, as Trustee of the Q Family Trust Dated November 17, 2004; Nancy L. Quinnear in her individual capacity; The Q Family Trust Dated November 17, 2004 (all previous owners); Eagle Rock Homeowners Association Homeowners Association/Previous Owner); and Nevada Association Services, Inc. (Agent for Homeowners Association) as Defendants.
2. Plaintiff LV Debt Collect, LLC's proposed first amended complaint attached hereto as Exhibit 1 shall be filed with this court.

         The parties further stipulate and agree to the following:

1. 28 U.S.C. Code § 1447(c) states:
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.
2. Furthermore, 28 U.S.C. Code § 1447(e) states:
If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.

         Defendant Wells Fargo filed its Petition for Removal to this Court on December 9, 2016 (ECF No. 1). However, Wells Fargo and Plaintiff have since resolved the claims between them and filed a dismissal and disclaimer of interest on 3/22/2019. Defendant MERS was served and has not yet filed a responsive pleading, on 3/21/2019 this court entered an order directing MERS to respond by 4/4/2019, MERS and Plaintiff are finalizing a disclaimer of MERS's interest which will be filed with the State Court after remand. A Clerk's Default against Nations First Lending, Inc. was entered on 3/22/2019.

         Upon information and belief, all new Defendants included in Plaintiff's First Amended Complaint are individuals and corporations doing business in Nevada. Remaining Defendant The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-02, Mortgage Pass-Through Certificates, Series 2005-02 (hereafter “BONY”), is a foreign corporation doing business in Clark County, Nevada, and have agreed to continue proceedings in the Eighth Judicial District Court in Clark County Nevada. As a result, complete diversity no longer exists among the parties, and this Court no longer retains subject matter jurisdiction.

         Therefore, the parties stipulate to remand this action to the Eighth Judicial District Court in Clark County, Nevada.

         ORDER

         The Court, having reviewed the stipulation of the parties, and good cause appearing therefore, IT IS HEREBY ORDERED that Plaintiff is permitted to amend its Complaint to include John L. Quinnear, as Trustee of The Q Family Trust Dated November 17, 2004; John L. Quinnear in his individual capacity, Nancy L. Quinnear, as Trustee of the Q Family Trust Dated November 17, 2004; Nancy L. Quinnear in her individual capacity; The Q Family Trust Dated November 17, 2004; Eagle Rock Homeowners Association; and Nevada Association Services, Inc. as Defendants. The Amended Complaint attached hereto as Exhibit 1 shall be filed with this Court.

         IT IS FURTHER ORDERED that the present action be remanded back to the Eighth Judicial District Court of Clark County Nevada.

         IT IS SO ORDERED.

         EXHIBIT 1 (Omitted)

         PROPOSED AMENDED COMPLAINT: QUIET TITLE

         EXEMPTION FROM ARBITRATION: Title to real property

         COMES NOW, LV Debt Collect, LLC (hereafter, “Plaintiff”), by and through its attorney, Michael N. Beede, Esq., and hereby amends its complaint and alleges against the above-named Defendants as follows:

         PARTIES, JURISDICTION AND VENUE

         1. This action relates to the ownership and title to certain residential real property located in Clark County, Nevada commonly known as 516 Pinnacle Heights Lane and bearing Clark County Assessor's Parcel Number 138-30-312-031 (the “Property”). Accordingly, jurisdiction and venue are appropriate in Clark County, Nevada.

         2. Plaintiff, LV Debt Collect, LLC, is a limited liability company doing business in Clark County, Nevada, and is the record owner of the Property.

         3. Upon information and belief, Defendant The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-02, Mortgage Pass-Through Certificates, Series 2005-02 (hereafter, “BONY”) is a foreign corporation doing business in Clark County, Nevada.

         4. Upon information and belief, Defendant Mortgage Electronic Registration Systems, Inc. (hereafter, “MERS”) is a foreign ...


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