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Bank of New York Mellon v. Braewood Heritage Association, Inc.

United States District Court, D. Nevada

April 4, 2019

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2006-33CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-33CB Plaintiff,
v.
BRAEWOOD HERITAGE ASSOCIATION, INC.; NYLA G. CARSON; MARIAN L. HAMMOND; DOE INDIVIDUALS I-X, inclusive, and ROE CORPORATIONS I-X, inclusive, Defendants.

          Darren T. Brenner, ESQ Natalie L. Winslow, ESQ.AKERMAN LLP Attorneys for The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc., Alternative Loan Trust 2006-33CB, Mortgage Pass-Through Certificates, Series 2006-33CB

          ORDER GRANTING APPLICATION FOR ENTRY OF DEFAULT JUDGMENT AGAINST MARIAN L. HAMMOND

         The Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc., Alternative Loan Trust 2006-33CB, Mortgage Pass-Through Certificates, Series 2006-33CB The Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc., Alternative Loan Trust 2006-33CB, Mortgage Pass-Through Certificates, Series 2006-33CB (BNY) submits the following proposed order, pursuant to the court's order dated September 28, 2018, ECF No. 43.

         1. This action concerns the real property located at 3378 Clandara Avenue, Las Vegas, Nevada 89121.

         2. Marian Hammond acquired an interest in the property on or about July 2006, as evidenced by a grant, bargain, sale deed recorded in favor of Hammond that was recorded against the property on August 1, 2006 as Instrument No. 20060801-0004205.

         3. Hammond borrowed $146, 900.00 to purchase the property. To secure the loan, lender Cornerstone Home Lending recorded a deed of trust against the property on August 1, 2006 as Instrument No. 20060801-0004206.

         4. BNY is the current record beneficiary of the deed of trust. A true and correct copy of the assignment of deed of trust in favor of BNY was recorded against the property on April 16, 2012 as Instrument No. 201204160001184.

         5. The deed of trust remains a valid and enforceable lien against the property.

         6. The deed of trust is the senior lien encumbering the property.

         7. Hammond defaulted under the terms of the note and deed of trust by failing to make all required payments when due. The amounts under the loan are now due and owing to BNY.

         8. Nevada Revised Statutes 40.430 et seq. provides the statutory framework for judicial actions for foreclosure of real mortgages in Nevada. These statutes "must be construed to permit a secured creditor to realize upon the collateral for a debt or other obligation agreed upon by the debtor and creditor when the debt or other obligation was incurred." NRS 40.430(2).

         9. For judicial foreclosure actions, "the judgment must be rendered for the amount found due the plaintiff, and the court, by its decree or judgment, may direct a sale of the encumbered property, or such part thereof as is necessary, and apply the proceeds of the sale as provided in NRS 40.462." NRS 40.430(1). "[A] creditor of a note secured by real property must first pursue judicial foreclosure before recovering from the debtor directly." McDonald v. D.P. Alexander & Las Vegas Boulevard, LLC, 121 Nev. 812, 816, 123 P.3d 748, 750 (2005).

         10. In order to enforce a deed of trust through foreclosure in Nevada, the deed of trust and underlying promissory note must be held by the same party. Edelstein v. Bank of N.Y. Mellon, 286 P.3d 249, 260 (Nev. 2012) (citing Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1039 (9th Cir. 2011)). Separation of the deed of trust and note at any particular point in time does not preclude enforcement when the documents are ultimately unified in the same party. Edelstein, 286 P.3d at 259. "Indeed, while entitlement to enforce both the deed of trust and the promissory note is required to foreclose, nothing requires those documents to be unified from the point of inception of the loan." Id. (citing In re Tucker, 441 B.R. 638, 644 (Bankr. W.D.Mo. 2010)).

         11. "To prove that a previous beneficiary properly assigned its beneficial interest in the deed of trust, the new beneficiary can demonstrate the assignment by means of a signed writing." Edelstein, 286 P.3d at 260 (citing Leyva v. Nat'l Default Servicing Corp., 127 Nev., 255 P.3d 1275, 1279 (2011)).

         12. In general, an assignment of a trust deed's interest in land "must be in writing, subscribed by the party creating, granting, assigning, or declaring the same, or by the party's lawful agent thereunto authorized in writing." NRS 111.205(1). An assignment of a beneficial interest in a deed of trust must also be ...


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