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Bank of New York Mellon v. Imagination North Landscape Maintenance Association

United States District Court, D. Nevada

September 24, 2019

THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK as Trustee for the CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2005-J12 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-J12, Plaintiffs,
v.
IMAGINATION NORTH LANDSCAPE MAINTENANCE ASSOCIATION; SFR INVESTMENTS POOL 1, LLC; and ALESSI & KOENIG, LLC, Defendants. SFR INVESTMENTS POOL 1, LLC, Counter/Cross Claimant,
v.
BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK as Trustee for the CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2005-J12 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-J12; BANK OF AMERICA, N.A.; and JULIE A. CHRISTENSEN, an individual, Counter/Cross Defendants. JULIE CHRISTENSEN, Counter/Cross Claimant,
v.
BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK as Trustee for CERTFICATE HOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2005- J12 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-J12; ALESSI & KOENIG, LLC, a Nevada Limited Liability Company; IMAGINATION NORTH LANDSCAPE MAINTENANCE ASSOCIATION, a Domestic Non-Profit Cooperation Corporation; SFR INVESTMENT POOLS 1, LLC, a Nevada Limited Liability Company; BANK OF AMERICA, N.A.; DOES 1-10; and ROES 1- 10, Counter/Cross Defendants.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This dispute arises from the foreclosure sale of property to satisfy a homeowners’ association lien. Before the Court are the following motions: (1) Plaintiff Bank of New York Mellon’s (“BONY”) motion for reconsideration (ECF No. 141); (2) BONY’s motion for summary judgment (ECF No. 144); (3) Defendant Imagination North Landscape Maintenance Association’s (“HOA”) motion for summary judgment (ECF Nos. 149, 154 (errata)); and (4) Defendant SFR Investments Pool 1, LLC’s (“SFR”) motion for summary judgment (ECF No. 152). The Court has reviewed the responses (ECF Nos. 142, 158, 159, 160) and replies (ECF Nos. 157, 161, 162) thereto. For the following reasons, the Court denies BONY’s motion for reconsideration and grants the three motions for summary judgment.

         II. BACKGROUND

         The following facts are undisputed unless otherwise indicated.

         Julie Christensen (“Borrower”) purchased real property (“Property”) located within the HOA at 3136 Extravagant Avenue, North Las Vegas, Nevada 89031 on July 18, 2005. (ECF No. 144-1 at 2-4, 16.) The Borrower financed the purchase with a $223, 992 loan (“Loan”) evidenced by a note (“Note”) and secured by a first deed of trust (“DOT”) on the Property. (Id. at 2.) The DOT was assigned to BONY in May 2011. (ECF No. 144-2 at 2.)

         The HOA recorded the following notices through its agent Alessi & Koenig, LLC (“Alessi”): (1) notice of delinquent assessment on June 3, 2011 (ECF No. 144-4 at 2); (2) notice of default and election to sell on August 29, 2011 (ECF No. 144-5 at 2); and (3) notice of trustee’s sale on March 20, 2012 (ECF No. 144-6 at 2).

         The HOA foreclosed on the Property and sold it to SFR in July 2012 (“HOA Sale”) for $3, 300. (ECF No. 144-12 at 2.)

         The Court previously resolved BONY and SFR’s claims and counterclaims. (See ECF No. 136 at 9-10.) But most of the Borrower’s counterclaims and crossclaims remain pending before the Court: (1) violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., against Alessi and the HOA; (2) wrongful foreclosure against Alessi and the HOA; (3) violation of Nevada Unfair Trade Practices Act (“NUPTA”), NRS § 598A.060(1)(a)(12), against Alessi, the HOA, and SFR; (4) false representation against Alessi, the HOA, and BONY; (5) breach of contract against the HOA; (6) crimes against property under NRS Chapter 205 against all Defendants; (7) negligence against Alessi, the HOA, Bank of America, N.A. (“BANA”), and BONY; (8) breach of contract/fiduciary duty against BANA and BONY; (9) slander of title/quiet title against Alessi, BONY, the HOA;[1] and (10) intentional infliction of emotional distress (“IIED”) against Alessi and the HOA. (ECF No. 34 at 14-28.)

         III. BONY’S MOTION FOR RECONSIDERATION (ECF NO. 141)

         A. Legal Standard

         A motion to reconsider must set forth “some valid reason why the court should reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision.” Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J v. AC&S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005).

         B. Discussion

         BONY first argues that it is entitled to reconsideration because the Nevada Supreme Court recently affirmed a lower court’s decision that a limited purpose association’s foreclosure sale did not extinguish the deed of trust connected to the property. (ECF No. 141 at 4-6 (citing Saticoy Bay LLC Series 4500 Pac. Sun v. Lakeview Loan Servicing, LLC (“Pacific Sun”), 441 P.3d 81 (Nev. 2019)).) But Pacific Sun has nothing to do with waiver. This Court found that BONY waived its arguments based on the HOA’s status as a limited purpose association. (ECF No. 136 at 5-8.) Accordingly, the Court rejects BONY’s first argument.

         BONY next argues that it is entitled to reconsideration because SFR failed to meet its burden of establishing that the HOA foreclosed a superpriority lien. (ECF No. 141 at 2.) But BONY relies exclusively on the HOA’s status as a limited purpose association. (See Id . at 6-11.) BONY waived this argument. (ECF No. 136 at 5-8.) Accordingly, the Court rejects BONY’s second argument and denies BONY’s motion for reconsideration.

         IV. BONY’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 144)

         The Borrower asserts the following counterclaims against BONY: (1) false representation; (2) crimes against property under NRS Chapter 205; (3) negligence; (4) breach of contract/fiduciary duty; and (5) slander of title/quiet title.[2] (ECF No. 34 at 18, 21-22, 24, 26.) BONY argues that it is entitled to summary judgment because these counterclaims are premised on a duty that BONY did not have-a duty to cure the Borrower’s HOA payment default. (ECF No. 144 at 5-9.) The Borrower has not cited any authority or adduced any evidence to show that BONY owed her a duty to cure her HOA payment default. (See ECF No. 160 at 5-6.) Accordingly, the Court grants ...


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