United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON fka Bank of New York Mellon as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2005-54CB, Mortgage Pass-Through Certificates Series 2005-54CB Plaintiff,
HAROLD HILL, an individual; ENCHANTMENT AT SUNSET BAY CONDOMINIUM ASSOCIATION; 732 HARDY WAY TRUST; and NEVADA ASSOCIATION SERVICES, INC., Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court are three motions: 732 Hardy Way Trust's motion
to dismiss, ECF No. 34; 732 Hardy Way Trust's motion for
summary judgment, ECF No. 37; and The Bank of New York
Mellon's renewed motion for summary judgment, ECF No. 38.
New York Mellon sued defendants and filed a notice of lis
pendens on July 13, 2017. ECF Nos. 1, 4. This matter was
stayed on March 23, 2018, pending the Nevada Supreme
Court's decision on a certified question, which was later
answered in SFR Investments Pool 1, LLC v. Bank of New
York Mellon, 422 P.3d 1248 (Nev. 2018). ECF No. 29. The
stay was lifted on August 23, 2018. ECF No. 33. The Clerk of
the Court entered default against Defendant Nevada
Association Services, Inc. (“NAS”) on September
26, 2018. ECF No. 41.
Way now moves to dismiss the complaint, ECF No. 34, and moves
for summary judgment, ECF No. 37. Both motions were fully
briefed. 42, 43, 45, 47. Bank of New York Mellon also moves
for summary judgment. ECF No. 38. The motion was also fully
briefed. ECF Nos. 44, 46, 48, 49. The Court held oral
arguments on the motions on July 18, 2019. ECF No. 55.
Court finds the following facts to be undisputed. Harold Hill
obtained a loan from First Community Mortgage to purchase the
property at 732 Hardy Way #F, Mesquite, Nevada. The loan was
secured by a deed of trust that was recorded in 2005. In
November 2013, the note and the deed of trust were assigned
to Bank of New York Mellon.
property is subject to the covenants, conditions, and
restrictions (“CC&Rs”) of the Enchantment at
Sunset Bay Condominium Association (the
“Association”). The Association recorded the
CC&Rs, which state in part: “Notwithstanding any
other provisions of this Declaration, no amendment or
violation of this Declaration shall operate to defeat or
render invalid the rights of the Beneficiary under any Deed
Hill failed to timely pay homeowners' association dues to
the Association, the Association, through its agent Nevada
Association Services (“NAS”), began a nonjudicial
foreclosure process under Nevada Revised Statute
(“NRS”) Chapter 116 by recording a notice of
delinquent assessment in January 2014. In February 2014, the
Association, through NAS, recorded a notice of default and
election to sell. Neither notice specified the superpriority
amount of the Association's lien, but the notices
referenced the CC&Rs.
March 2014, Hill filed for Chapter 13 bankruptcy in Utah,
listing the property as an asset in his schedules and in the
Chapter 13 plan. But Hill did not list the Association as a
creditor. The bankruptcy remained open until 2017, and
neither the Association nor NAS moved for relief from the
the bankruptcy was pending, the Association, through NAS,
recorded a notice of trustee's sale in July 2014. The
notice did not identify the superpriority amount of the
Association's lien. Further, the notice of sale states
that the “sale will be made without covenant or
warranty, express or implied regarding, but not limited to,
title or possession, or encumbrances, or obligations to
satisfy any secured or unsecured liens.” The
Association sold the property to Hardy Way at a public
auction on September 19, 2014 for $6, 072.29.
foreclosure deed states that the Association, through NAS,
“grant[s] and convey[s], but without warranty express
or implied, ” the property to Hardy Way.