United States District Court, D. Nevada
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,
BRAEWOOD HERITAGE ASSOCIATION, INC.; NYLA G. CARSON; MARIAN L. HAMMOND; DOE INDIVIDUALS I-X, inclusive, and ROE CORPORATIONS I-X, inclusive, Defendants.
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
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.
action concerns the real property located at 3378 Clandara
Avenue, Las Vegas, Nevada 89121.
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.
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.
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.
deed of trust remains a valid and enforceable lien against
deed of trust is the senior lien encumbering the property.
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.
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).
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).
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)).
"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)).
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 ...