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Bank of New York Mellon v. Mission Del Rey Homeowners Association

United States District Court, D. Nevada

September 30, 2019

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2006- 23CB, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006- 23CB, Plaintiff,
v.
MISSION DEL REY HOMEOWNERS ASSOCIATION; SFR INVESTMENTS POOL 1, LLC, Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the Court is Bank of New York Mellon's (BNY) Counter Motion for Partial Summary Judgment (ECF No. 40). For the reasons stated below, the Court grants the motion.

         II. PROCEDURAL BACKGROUND

         BNY filed its Complaint on August 14, 2017, seeking quiet title and declaratory relief that a nonjudicial foreclosure sale did not extinguish its deed of trust on a Las Vegas property. ECF No. 1. On November 9, 2017, Defendant Mission Del Rey Homeowners Association (“Mission Del Rey” or “the HOA”) filed a Motion for Partial Dismissal or Alternatively, Motion for Partial Summary Judgment. ECF No. 14. The Court entered a scheduling order on January 31, 2018. ECF No. 22. Defendant SFR Investments Pool 1, LLC filed a Motion to Dismiss on May 7, 2018. ECF No. 31. Discovery closed on June 29, 2018. ECF No. 28.

         On July 13, 2018, the Court denied Mission Del Rey's pending motion without prejudice and issued a stay in the case pending the Nevada Supreme Court's decision on a certified question of law regarding the notice requirements of Chapter 116 of the Nevada Revised Statutes (“NRS”) in Bank of N.Y. Mellon v. Star Hill Homeowners Ass'n, No. 2:16-cv-02561-RFB-PAL. ECF No. 34. The Nevada Supreme Court published an answer to the certified question on August 2, 2018. SFR Investments Pool 1, LLC v. Bank of New York Mellon, 422 P.3d 1248 (Nev. 2018).

         On August 23, 2018, SFR filed a Renewed Motion to Dismiss. ECF No. 35. On August 24, 2018, Mission Del Rey filed a Renewed Motion for Partial Dismissal or Alternatively, Motion for Partial Summary Judgment and joined SFR's Renewed Motion to Dismiss. ECF Nos. 36, 37. On September 13, 2018, BNY filed the instant Counter-Motion for Partial Summary Judgment. ECF No. 40. On October 4, 2018, SFR filed a Motion to Strike BNY's Counter-Motion for Partial Summary Judgment as untimely filed. ECF No. 49. Mission Del Rey responded to BNY's motion on that same day. ECF No. 48. On March 31, 2019, the Court issued a written order lifting the stay. ECF No. 57. The order also granted SFR's Renewed Motion to Dismiss and Mission Del Rey's Renewed Motion for Partial Dismissal/Motion for Partial Summary Judgment in part, finding that any of BNY's claims based on liability created by a statute were time-barred. Id. The order denied SFR's Motion to Strike and granted SFR additional time to respond to BNY's Counter Motion for Summary Judgment. Id. SFR filed its response to BNY's motion on April 22, 2019. ECF Nos. 59, 60. BNY replied on May 20, 2019. ECF No. 62. On July 18, 2019, the Court held a hearing on the Counter Motion. This written order now follows.

         III. FACTUAL BACKGROUND

         The Court makes the following findings of undisputed and disputed facts.

         a. Undisputed Facts

         Linda R. Kabiling and Gil David Kabiling (“borrowers”) obtained a $244, 395.00 loan from New Freedom Mortgage Corporation to purchase the property at 805 El Cabo Rey Avenue, Las Vegas, Nevada 89081. The loan was evidenced by a note and secured by a deed of trust that was recorded on May 26, 2005. Borrowers further encumbered the property with a second $80, 000.00 mortgage from Navy Federal Credit Union on December 12, 2006. The deed of trust was assigned to Plaintiff, which was recorded on October 21, 2011. The property is governed by the Mission Del Rey Homeowners Association and is subject to the HOA's covenants, conditions, and restrictions (“CC&Rs”). The borrowers failed to timely pay the HOA assessments.

         The HOA then began the nonjudicial foreclosure sale process under NRS Chapter 116 by recording, through its agent NAS, a notice of delinquent assessment lien on September 20, 2011. Per the notice, the amount due to HOA was $1, 524.10. The notice states that it is “in accordance with” the CC&Rs. On November 9, 2011, the HOA, through its agent NAS, recorded a notice of default and election to sell to satisfy the delinquent assessment lien. The notice states the amount due to HOA was $2, 507.20, but does not specify whether it includes dues, interest, fees and collection costs in addition to assessments. On December 28, 2011, Bank of America, the loan servicer at the time and BNY's predecessor-in-interest, requested a ledger from the HOA through its agent Nevada Association Services (“NAS”).

         The HOA, through its agent NAS, did not provide a ledger and did not respond to Bank of America's request.

         Miles Bauer used a statement of account for another property within the HOA to determine the superpriority amount. The amount of the periodic assessments for the nine months preceding the notice of lien was $162.00 per quarter. Nine months of common assessments of $162.00 quarterly is $486.00. On January 19, 2012, Bank of America, through its counsel Miles Bauer, tendered $486.00 to NAS. Miles Bauer' business records indicate that NAS refused Bank of America's payment. The HOA, through its agent NAS, recorded a notice of trustee's sale on March 27, 2012.The trustee's sale was scheduled for April 20, 2012.The notice states the amount due to HOA was $3, 666.12, which includes reasonable ...


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