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The Bank of New York Mellon v. SBH 2 Homeowners' Association

United States District Court, D. Nevada

December 26, 2019

THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC. CHL MORTGAGE PASS-THROUGH TRUST 2005-HYB 6 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-HYB6, Plaintiff,
v.
SBH 2 HOMEOWNERS' ASSOCIATION; SFR INVESTMENTS POOL 1, LLC; NEVADA ASSOCIATION SERVICES, INC.; DOE INDIVIDUALS I-X, inclusive, and ROE CORPORATIONS I-X, inclusive, Defendants.

          NATALIE L. WINSLOW, ESQ. Nevada Bar No. 12125 JAMIE K. COMBS, ESQ. Nevada Bar No. 13088 Akerman LLP Attorneys for The Bank of New York Mellon, fka The Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc. CHL Mortgage Pass-Through Trust 2005-HYB 6 Mortgage Pass-Through Certificates Series 2005-HYB6

          KIM GILBERT EBRON JASON G. MARTINEZ, NV Bar #13375 Attorneys for SFR Investments Pool 1, LLC

          PERRY &WESTBROOK, A PROFESSIONAL CORPORATION GABRIEL J. CZOP, NV Bar #14697 Attorneys for SBH 2 Homeowners' Association

          [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND ORDER DENYING SFR INVESTMENTS POOL 1, LLC'S MOTION TO DISMISS AND ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for the certificateholders of CWMBS, Inc. CHL Mortgage Pass-Through Trust 2005-HYB 6 Mortgage Pass-Through Certificates Series 2005-HYB6 (BNYM) submits this proposed order granting BNYM's summary judgment motion as to BNYM's quiet title/declaratory relief claim only [ECF No. 46], denying SFR Investments Pool 1, LLC's motion to dismiss [ECF No. 31], and denying BNYM's motion to amend complaint [ECF No. 33].

         FINDINGS OF FACT

         On or about June 3, 2005, Pauline Landicho Well purchased property located at 4361 Ruby Treasure Street, Las Vegas, Nevada 89147. Well financed ownership of the property by way of a loan in the amount of $253, 850, as evidenced by a note and secured by a deed of trust recorded on June 16, 2005. The deed of trust was assigned to BNYM via an assignment of deed of trust.

         The property was located within the SBH 2 Homeowners' Association (HOA). Pursuant to the HOA's CC&Rs, Well was required to pay monthly assessments to the HOA. The HOA's monthly assessments were $36.00 from March 2010 through December 2011, and $39.00 beginning on January 1, 2012.

         Well filed a chapter 13 bankruptcy petition with the United States Bankruptcy Court, District of Nevada, designated No. 10-31388-lbr on November 11, 2010. Well received her discharge on October 12, 2011. The bankruptcy was terminated on January 30, 2013.

         Well failed to pay the HOA all monthly assessments amounts due to it, and on February 6, 2012, the HOA, through its agent Nevada Association Services, Inc. (NAS), recorded a notice of delinquent assessment lien.

         On April 19 and 20, 2012, the HOA, through its agent NAS, recorded a notice of default and election to sell to satisfy the delinquent assessment lien.

         On or about May 24, 2012, Bank of America, as then-loan servicer for BNYM, tendered $2, 559.50 to NAS for the subject property, which was the amount stated in the HOA's recorded notice of default. The last nine months of assessments before the notice of lien was recorded was actually $330.00, which is seven months at $36.00 a month and two months at $39.00 a month. NAS drafted a disbursement requisition to pay the HOA $1, 109 with an accompanying letter indicating that the $1, 109 check was a partial payment on the above-rferenced delinquent account.

         On December 20, 2012, the HOA, through its agent NAS, recorded a notice of foreclosure sale.

         The HOA foreclosed on the property on April 19, 2013. SFR purchased the property at ...


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