Bank Of New York Mellon v. Church ( 2019 )

1 DARREN T. BRENNER, ESQ. Nevada Bar No. 8386 2 NATALIE L. WINSLOW, ESQ. Nevada Bar No. 12125 3 AKERMAN LLP 1635 Village Center Circle, Suite 200 4 Las Vegas, NV 89134 Telephone: (702) 634-5000 5 Facsimile: (702) 380-8572 Email: darren.brenner@akerman.com 6 Email: natalie.winslow@akerman.com 7 Attorneys for The Bank of New York Mellon fka The Bank of New York, as Trustee for the 8 Certificateholders CWALT, Inc., Alternative Loan Trust 2006-4CB, Mortgage Pass-Through 9 Certificates, Series 2006-4CB and Mortgage Electronic Registration Systems, Inc., as 10 nominee for BRS Citizens, N.A. 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 THE BANK OF NEW YORK MELLON FKA Case No.: 2:17-cv-00238-RFB-NJK THE BANK OF NEW YORK, AS TRUSTEE 15 FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN [PROPOSED] ORDER GRANTING 16 TRUST 2006-4CB, MORTGAGE PASS- PLAINTIFF'S MOTION FOR THROUGH CERTIFICATES, SERIES 2006- SUMMARY JUDGMENT IN PART 17 4CB, AND 18 Plaintiff, DENYING SFR INVESTMENTS POOL 1, 19 vs. LLC'S MOTION FOR PARTIAL SUMMARY JUDGMENT 20 MICHELLE R. CHURCH; SFR INVESTMENTS POOL 1, LLC; HAMPTON & AND 21 HAMPTON COLLECTIONS LLC; SILVERSTONE RANCH COMMUNITY DENYING SILVERSTONE RANCH 22 ASSOCIATION; DOE INDIVIDUALS I-X, COMMUNITY ASSOCIATION'S inclusive, and ROE CORPORATIONS I-X, MOTION FOR SUMMARY JUDGMENT 23 inclusive, 24 Defendants. 25 26 27 1 SILVERSTONE RANCH COMMUNITY 2 ASSOCIATION, Cross-Claimant, 3 vs. 4 HAMPTON & HAMPTON COLLECTIONS LLC, a Professional Corporation, 5 Cross-Defendant. 6 7 SFR INVESTMENTS POOL 1, LLC, 8 Counter/Cross-Claimant, 9 vs. 10 THE BANK OF NEW YORK MELLON FKA 11 THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS 12 CWALT, INC., ALTERNATIVE LOAN 13 TRUST 2006-4CB, MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2006- 14 4CB; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS 15 NOMINEE FOR BRS CITIZENS, N.A.; MICHELLE R. CHURCH, an individual, 16 17 Counter/Cross-Defendants. 18 The Bank of New York Mellon fka The Bank of New York, as Trustee for the 19 Certificateholders CWALT, Inc., Alternative Loan Trust 2006-4CB, Mortgage Pass-Through 20 Certificates, Series 2006-4CB (BNYM) submits this proposed order following the court's minute 21 order granting BNYM's summary judgment motion as to BNYM's quiet title/declaratory relief claim 22 only [ECF No. 51], denying SFR Investments Pool 1, LLC and Silverstone Ranch Community 23 Association's (HOA) summary judgment motions, and entering judgment in favor of BNYM, as 24 well as entering default judgment as to Michelle R. Church, in favor of SFR. ECF Nos. 62, 63. 25 FINDINGS OF FACT 26 Michelle R. Church and Irvin R. Church purchased property located at 8105 Bay Dunes 27 Street, Las Vegas, Nevada 89131-4346; Parcel No. 125-10-817-008 (“Property”) in 2005. The 1 transferring title of the Property from Michelle R. Church and Irvin R. Church to Michelle R. 2 Church, a married woman as her sole and separate property, was recorded on the Property as 3 Instrument No. 201209260004763. 4 The Churches borrowed $400,000.00 to finance their purchase of the Property, which lender 5 Countrywide Home Loans, Inc. secured with a deed of trust recorded against the Property. 6 Mortgage Electronic Registration Systems, Inc. (MERS) was listed as beneficiary under the deed 7 of trust, solely as nominee for the lender and the lender's successors and assigns. MERS assigned 8 the deed of trust to BNYM on August 20, 2009, and the assignment was recorded on September 15, 9 2009. 10 The HOA, through its agent Hampton & Hampton, P.C., recorded a notice of delinquent 11 assessment lien against the Property on October 23, 2009, followed by a second notice of delinquent 12 assessment lien on October 6, 2010, a notice of default and election to sell on November 18, 2010, 13 a second notice of default and election to sell on August 26, 2013, and a notice of trustee's sale 14 against the Property on July 25, 2014. 15 Prior to the HOA foreclosure sale, then-servicer Bank of America, through its counsel at 16 Miles, Bauer, Bergstrom & Winters, LLP, requested from the HOA a calculation of the superpriority 17 portion of the HOA's lien on December 20, 2010. 18 On or about December 30, 2010, Hampton sent Bank of America a facsimile, stating that the 19 amount due for nine months of assessments on the above-referenced Property was $2,025.72. On 20 January 21, 2011, Miles Bauer tendered that amount to the HOA, which the HOA accepted. 21 The HOA foreclosed on the property on September 10, 2014. SFR purchased the Property 22 for $90,000.00. 23 CONCLUSIONS OF LAW 24 BNYM's claims are not time-barred. The court incorporates by reference its reasoning as 25 set forth in Carrington Mortgage Services, LLC v. Tapestry at Town Center Homeowners Assoc., 26 381 F.Supp.3d 1289 (D. Nev. 2019). As the foreclosure sale in this case occurred on September 10, 27 2014, and the complaint was filed on January 27, 2017, none of BNYM's claims are time barred. 1 The court further finds that Bank of America, through Miles Bauer, paid the superpriority 2 portion of the HOA's lien prior to the HOA's foreclosure sale, as Miles Bauer tendered payment of 3 $2,025.72 to the HOA, through Hampton, on January 21, 2011. This payment of the superpriority 4 lien operated to preserve BNYM's deed of trust. The court incorporates by reference its reasoning 5 as set forth in The Bank of New York Mellon v. Mission del Rey Homeowners Assoc. et al., No. 6 2:17cv-02173-RFB-EJY, 2019 WL 4777305 (D. Nev. Sept. 30, 2019). 7 The court grants summary judgment in favor of BNYM as to its claim for quiet 8 title/declaratory relief. The court denies SFR's summary judgment motion. The court denies the 9 HOA's summary judgment motion as the claims for which the HOA sought summary judgment have 10 been dismissed. The court's determination that the superpriority tender in this case preserved 11 BNYM's deed of trust resolves all outstanding issues and claims as asserted by the parties to this 12 action. The court dismisses all remaining claims and counterclaims accordingly as it finds the issue 13 of tender to be dispositive in this case. 14 Accordingly, the interest of SFR Investments Pool 1, LLC or its successors and assigns in 15 the Property is subject to BNYM's deed of trust, recorded against the Property with the Clark County 16 Recorder as instrument no. 2005118-0004990. BNYM's deed of trust, as referenced in this 17 paragraph, remains a valid and existing encumbrance on the property. 18 The lis pendens recorded against the property with the Clark County Recorder as instrument 19 nos. 201702010001237 and 201703150001541 are expunged. 20 The certificate of cash deposit, at ECF No. 16, shall be returned to the legal owner, along 21 with all accrued interest. 22 . . . 23 . . . 24 . . . 25 . . . 26 . . . 27 . . . 1 The Court also grants default judgment against Michelle R. Church and in favor of SFR. Tt 2 ||nonjudicial foreclosure sale conducted on September 10, 2014 extinguished Church’s interest in tt 3 || Property. As aresult, Michelle R. Church, her successors or assigns, has no interest or property rig! 4 ||related to the real property located at 8105 Bay Dunes Street, Las Vegas, Nevada 89131-434¢ 5 || Parcel No. 125-10-817-008. 6 ORDER 7 ITISS DERED. 8 Ne Se RICHARD F. BOULWARE, II 9 UNITED STATES DISTRICT JUDGE 10 December 26, 2019 DATED 11 || Submitted by: 12 || AKERMAN LLP 13 || s/ Natalie L. Winslow NATALIE L. WINSLOW, ESQ., NV Bar #12125 14 || 1635 Village Center Circle, Suite 200 15 Las Vegas, Nevada 89134 Attorneys for The Bank of New York Mellon 16 The Bank of New York, as Trustee for the Certificateholders CWALT, Inc., Alternative 17 Loan Trust 2006-4CB, Mortgage Pass- Through Certificates, Series 2006-4CB and 18 || Mortgage Electronic Registration Systems, Inc., as nominee for BRS Citizens, N.A. 19 Reviewed By: 20 KIM GILBERT EBRON 1 /s/ Jason G. Martinez 99 || JASON G. MARTINEZ, ESQ., NV Bar #13375 7625 Dean Martin Drive, Suite 110 73 Las Vegas, Nevada 89139 >A Attorneys for SFR Investments Pool 1, LLC 25 || LEACH KERN GRUCHOW ANDERSON SONG 26 ||/s/ Ryan W. Reed RYAN W. REED, ESQ., NV Bar #11695 27 ||2525 Box Canyon Drive 38 Las Vegas, Nevada 89128 Attorneys for Silverstone Ranch Community Association xz