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The Bank of New York Mellon v. Anthony s. Noonan Ira, LLC

United States District Court, D. Nevada

August 23, 2019

THE BANK OF NEW YORK MELLON, et al., Plaintiff(s),
v.
ANTHONY S. NOONAN IRA, LLC, et al., Defendant(s).

          ORDER

         Presently before the court is the Bank of New York Mellon's (“BNYM”) motion to remand to state court. (ECF No. 7). Defendant Rivendell Homeowners Association (“Rivendell”) filed a response (ECF No. 11), as did defendants Anthony S. Noonan IRA, LLC (“Noonan”) and LP Financial, Inc. (“LP”) (ECF No. 14). BNYM did not reply but did file a notice regarding its motion to remand to state court. (ECF No. 31).

         Also before the court is BNYM's contemporaneous motion for attorney's fees. (ECF No. 8). Defendants responded (ECF Nos. 12, 15), and BNYM replied (ECF Nos. 19, 21).

         Also before the court is Rivendell's motion to dismiss. (ECF No. 13). Noonan and LP joined in the motion. (ECF No. 22). BNYM responded. (ECF No. 23). No party replied.

         Also before the court is Noonan and LP's motion to dismiss. (ECF No. 28). BNYM responded (ECF No. 32), and there was no reply.

         Also before the court is BNYM's motion for summary judgment. (ECF No. 34). Defendants responded (ECF Nos. 40, 41), and BNYM replied (ECF Nos. 42, 43).

         I. Facts

         The instant action arises from a dispute regarding the HOA superpriority-lien foreclosure sale of 6982 Mirkwood Avenue, Las Vegas, Nevada in March of 2007. (ECF Nos. 1, 7). The home was initially purchased by Richard Chen, who borrowed $584, 500 dollars from Preferred Home Mortgage to do so. (ECF No. 7 at 2). As security for the loan, Chen executed a deed of trust in favor of Preferred Home Mortgage.[1] Id.

         Between March 2012, and August 2014, Rivendell recorded a notice of delinquent assessment lien against the property, rejected Bank of America's[2] tender of the superpriority amount, foreclosed on the property, and sold the property to Noonan and LP. Id.

         Noonan and LP, as purchasers of the property, filed a quiet title action against Chen in the Eighth Judicial District Court for Clark County, Nevada, case number A-14-706118-C. Id. Noonan and LP amended their complaint to include Preferred Home Mortgage. Id. BNYM alleges that Preferred Home Mortgage did not have an interest in the property at the time the complaint was amended because it had already designated MERS as the beneficiary under the deed of trust. Id. Nonetheless, Noonan and LP sought and received a default judgment against Preferred Home Mortgage. Id. BNYM and MERS then sought to intervene in the state court action and set aside the default judgment. Id.

         BNYM was able to intervene and set aside the default judgment, but the Nevada Supreme Court reversed and remanded the case on appeal. Id. at 3. BNYM moved to substitute in place of Preferred Home Mortgage in the ongoing action. Id. BNYM simultaneously initiated the instant action against Noonan, LP, and Rivendell in state court, case A-18-784416-C, asserting a variety of state-law claims including quiet title, declaratory relief, breach of NRS 116, and wrongful foreclosure. Id. Noonan and LP timely removed the action, and BNYM moved to remand. Id.

         II. Legal Standard

         Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a [s]tate court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a).

         For a United States district court to have diversity jurisdiction under 28 U.S.C. § 1332, the parties must be completely diverse and the amount in controversy must exceed $75, 000.00, exclusive of interest and costs. See 28 U.S.C. § 1332(a); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1098 (9th Cir. 2003). A removing defendant has the burden to prove by a preponderance of the evidence that the jurisdictional amount is met. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996).

         Procedurally, a defendant has thirty (30) days upon notice of removability to remove a case to federal court. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citing 28 U.S.C. § 1446(b)(2)). Defendants are not charged with notice of removability “until they've ...


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