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Bank of New York Mellon v. Maryland Pebble at Silverado Homeowners Association

United States District Court, D. Nevada

April 12, 2019




         I. SUMMARY

         This case arises from the foreclosure sale of property to satisfy a homeowners' association lien. Before the Court is Plaintiff Bank Of New York Mellon as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2005-17, Mortgage Pass-Through Certificates, Series 2005-17, f/k/a Bank of New York's renewed motion for summary judgment (the “Motion”) (ECF No. 63), [1] and Defendant Las Vegas Equity Group, LLC's (“LVEG”) former attorney Aaron R. Dean's motion to adjudicate his attorney's lien (“Lien Motion”) (ECF No. 57). Because the Court agrees with Plaintiff that it properly tendered the superpriority amount-and as explained below-the Court will grant Plaintiff's Motion. The Court also grants in part and denies in part Dean's Lien Motion because the fees he seeks are reasonable, and he has complied with the applicable Nevada statue, but his request for fees incurred in preparing the Lien Motion is unsupported.


         The following facts are undisputed unless otherwise indicated.

         In March 2005, Kris Pacada and Robin Pacada (“Borrowers”) obtained a loan for $280, 000 (“Loan”) and executed a note secured by a deed of trust (“DOT”) on the real property located at 8901 Living Rose Street, Las Vegas, Nevada 89123 (“the Property”). (ECF No. 63-1 at 2-4.) The DOT was assigned to Plaintiff in October 2011. (Id. at 25.)

         Borrowers failed to pay HOA assessments, and the HOA recorded a notice of delinquent assessment lien in July 2011, identifying the amount due to the HOA to date as $973.31.[2] (Id. at 30.) The HOA recorded a notice of default and election to sell on September 2, 2011, identifying the amount due to the HOA to date as $1, 803.54. (Id. at 32.) On August 6, 2013, the HOA recorded a notice of sale through ATC stating that $3, 383.34 was owed to the HOA, including ATC's costs and fees. (Id. at 35-36.)

         Counsel for the Loan's prior servicer, Bank of America, N.A., acting through its agent (the law firm “Miles Bauer”), requested from ATC a calculation of the superpriority portion of the HOA's lien and offered to pay that amount.[3] (Id. at 42-43.) ATC responded with a demand statement, which included a ledger showing all amounts allegedly due. (Id. at 45-48.) The ledger provided by ATC states that the periodic assessment due on the Property was $39.59. (Id. at 46.) Further, the ledger indicates Borrowers owed four of these, for a total of $158.36. (Id.) The ledger also indicates one $10 charge for “Clerical - bare spots on lawn;” one $10 charge for “Clerical - remove dead fronds on palm tree;” and one $10 charge for “Clerical - Trim Plants.” (Id.)

         Miles Bauer apparently calculated that nine months of assessments on the Property was $197.25[4] and tendered that amount (“the Check”), to ATC on December 28, 2011. (Id. at 50-53.) Miles Bauer's records show the Check was “rejected” by ATC. (Id. at 54.)

         The HOA proceeded with the foreclosure sale on October 8, 2013 (the “HOA Sale”), and LVEG purchased the Property at the HOA Sale for $8, 200. (Id. at 60-61.)

         Plaintiff asserts claims for: (1) quiet title/declaratory judgment against all Defendants; (2) breach of NRS § 116.1113 against ATC and the HOA; (3) wrongful foreclosure against the HOA and ATC; (4) injunctive relief against LVEG; (5) deceptive trade practices against the HOA and ATC; and (6) judicial foreclosure against Borrowers. (ECF No. 1 at 7-16.) LVEG later filed a third-party complaint including claims for quiet title against Plaintiff and Borrowers, and unjust enrichment against Plaintiff. (ECF No. 19 at 20-24.)


         “The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. See Id. at 250-51. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at trial.'” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. See Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

         The moving party bears the burden of showing that there are no genuine issues of material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, ” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita ...

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