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Bank of New York Mellon v. Hill

United States District Court, D. Nevada

September 30, 2019

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,
v.
HAROLD HILL, an individual; ENCHANTMENT AT SUNSET BAY CONDOMINIUM ASSOCIATION; 732 HARDY WAY TRUST; and NEVADA ASSOCIATION SERVICES, INC., Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before 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.

         II. PROCEDURAL BACKGROUND

         Bank of 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.

         Hardy 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.

         III. UNDISPUTED FACTS

         The 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.

         The 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 of Trust….”

         After 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.

         In 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 automatic stay.

         While 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.

         The foreclosure deed states that the Association, through NAS, “grant[s] and convey[s], but without warranty express or implied, ” the property to Hardy Way.

         IV. ...


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