The Bank Of New York Mellon v. SBH 2 Homeowners' Association ( 2019 )

1 NATALIE L. WINSLOW, ESQ. Nevada Bar No. 12125 2 JAMIE K. COMBS, ESQ. Nevada Bar No. 13088 3 AKERMAN LLP 1635 Village Center Circle, Suite 200 4 Las Vegas, NV 89134 Telephone: (702) 634-5000 5 Facsimile: (702) 380-8572 Email: natalie.winslow@akerman.com 6 jamie.combs@akerman.com 7 Attorneys for The Bank of New York Mellon, 8 fka The Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc. CHL 9 Mortgage Pass-Through Trust 2005-HYB 6 Mortgage Pass-Through Certificates Series 10 2005-HYB6 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 THE BANK OF NEW YORK MELLON, CaseNo.: 2:16-cv-01129-RFB-DJA F/K/A THE BANK OF NEW YORK, AS 15 TRUSTEE FOR THE [PROPOSED] ORDER GRANTING CERTIFICATEHOLDERS OF CWMBS, 16 PLAINTIFF'S MOTION FOR SUMMARY INC. CHL MORTGAGE PASS-THROUGH JUDGMENT TRUST 2005-HYB 6 MORTGAGE PASS- 17 THROUGH CERTIFICATES SERIES AND ORDER DENYING SFR INVESTMENTS 18 2005-HYB6, POOL 1, LLC'S MOTION TO DISMISS Plaintiff, 19 AND ORDER DENYING PLAINTIFF'S vs. MOTION FOR LEAVE TO FILE FIRST 20 AMENDED COMPLAINT SBH 2 HOMEOWNERS' ASSOCIATION; 21 SFR INVESTMENTS POOL 1, LLC; NEVADA ASSOCIATION SERVICES, 22 INC.; DOE INDIVIDUALS I-X, inclusive, and ROE CORPORATIONS I-X, inclusive, 23 Defendants. 24 25 The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for the 26 certificateholders of CWMBS, Inc. CHL Mortgage Pass-Through Trust 2005-HYB 6 Mortgage Pass- 27 Through Certificates Series 2005-HYB6 (BNYM) submits this proposed order granting BNYM's 1 denying SFR Investments Pool 1, LLC's motion to dismiss [ECF No. 31], and denying BNYM's motion 2 to amend complaint [ECF No. 33]. 3 FINDINGS OF FACT 4 On or about June 3, 2005, Pauline Landicho Well purchased property located at 4361 Ruby 5 Treasure Street, Las Vegas, Nevada 89147. Well financed ownership of the property by way of a loan 6 in the amount of $253,850, as evidenced by a note and secured by a deed of trust recorded on June 16, 7 2005. The deed of trust was assigned to BNYM via an assignment of deed of trust. 8 The property was located within the SBH 2 Homeowners' Association (HOA). Pursuant to the 9 HOA's CC&Rs, Well was required to pay monthly assessments to the HOA. The HOA's monthly 10 assessments were $36.00 from March 2010 through December 2011, and $39.00 beginning on January 11 1, 2012. 12 Well filed a chapter 13 bankruptcy petition with the United States Bankruptcy Court, District 13 of Nevada, designated case no. 10-31388-lbr on November 11, 2010. Well received her discharge on 14 October 12, 2011. The bankruptcy was terminated on January 30, 2013. 15 Well failed to pay the HOA all monthly assessments amounts due to it, and on February 6, 2012, 16 the HOA, through its agent Nevada Association Services, Inc. (NAS), recorded a notice of delinquent 17 assessment lien. 18 On April 19 and 20, 2012, the HOA, through its agent NAS, recorded a notice of default and 19 election to sell to satisfy the delinquent assessment lien. 20 On or about May 24, 2012, Bank of America, as then-loan servicer for BNYM, tendered 21 $2,559.50 to NAS for the subject property, which was the amount stated in the HOA's recorded notice 22 of default. The last nine months of assessments before the notice of lien was recorded was actually 23 $330.00, which is seven months at $36.00 a month and two months at $39.00 a month. NAS drafted a 24 disbursement requisition to pay the HOA $1,109 with an accompanying letter indicating that the $1,109 25 check was a partial payment on the above-rferenced delinquent account. 26 On December 20, 2012, the HOA, through its agent NAS, recorded a notice of foreclosure sale. 27 The HOA foreclosed on the property on April 19, 2013. SFR purchased the property at the 1 CONCLUSIONS OF LAW 2 BNYM's claims are subject to the three-year statute of limitations under NRS 11.190(3)(a), to 3 the extent they are allegations of liability derived from statute. To the extent BNYM seeks relief based 4 on equitable grounds, its claims fall within the catchall provision of NRS 11.220. The court 5 incorporates by reference its reasoning as set forth in Carrington Mortgage Services, LLC v. Tapestry 6 at Town Center Homeowners Assoc., 381 F.Supp.3d 1289 (D. Nev. 2019). Accordingly, the court 7 denies SFR's motion to dismiss [ECF No. 31] on statute of limitations grounds because BNYM's 8 argument as it relates to tender is not time-barred. 9 The court further finds the borrower Pauline Well is not a required party to this litigation 10 because the court can accord complete relief to the existing parties without the presence of the borrower 11 who does not have a current interest in the property. The court denies SFR’s motion to dismiss [ECF 12 No. 31] on these grounds as well. 13 The court further finds that BNYM's agent Bank of America preserved the deed of trust through 14 its tender in accordance with the Nevada supreme court's decision in Bank of Am., N.A. v. SFR Invs. 15 Pool 1, LLC, 427 P.3d 113 (Nev. 2008). The court further rejects the HOA's arguments that there is a 16 genuine issue of disputed material fact as to whether or not the tender was properly made. However 17 the payment was applied, it is undisputed the payment made exceeded the superpriority portion of the 18 HOA's lien. 19 The court further finds SFR has not raised anything other than a metaphysical doubt as to 20 whether BNYM is the true owner of the subject promissory note. The court incorporates by reference 21 its reasoning in Bank of New York Mellon v. SFR Invs. Pool 1, LLC, No. 2:17-cv-02173-RFV-EJY, 22 2019 WL 4777305 (D. Nev. Sept. 30, 2019). 23 The court denies without prejudice the motion for leave to amend [ECF No. 33] because the 24 court finds its resolution of BNYM's motion as to tender resolves this case in its entirety. 25 The court grants summary judgment in favor of BNYM as to its claim for quiet title/declaratory 26 relief [ECF No. 46]. The interest of SFR Investments Pool 1, LLC or its successors and assigns in the 27 property is subject to BNYM's deed of trust, recorded against the property with the Clark County Recorder as instrument no. 20050616-0005202. BNYM!'s deed of trust, as referenced in this paragraph 2|| remains a valid and existing encumbrance on the property. 3 The lis pendens recorded against the property with the Clark County Recorder as instrumen no. 201606030000068 is expunged. 5 The certificate of cash deposit, at ECF No. 112, shall be returned to the legal owner designate 6|| in the certificate of deposit, along with all accrued interest. 7 ORDER 8 IT IS RDERED. 9 RICHARD F. BOULWARE, II 10 UNITED STATES DISTRICT JUDGE ll December 26, 2019 19 Submitted by: DATED 13|| AXERMANLLP /s/ Natalie L. Winslow NATALIE L. WINSLOW, ESQ., NV Bar #12125 Fa 1635 Village Center Circle, Suite 200 Las Vegas, Nevada 89134 16|| Attorneys for The Bank of New York Mellon, fka The Bank of New York, as Trustee for the 171! Certificateholders of CWMBS, Inc. CHL Mortgage Pass-Through Trust 2005-HYB 6 18 Mortgage Pass-Through Certificates Series 2005-HYB6 19 Reviewed By: KIM GILBERT EBRON B/Jason G. Martinez JASON G. MARTINEZ, NV Bar #13375 23 7625 Dean Martin Drive, Suite 110 Las Vegas, Nevada 89139 Attorneys for SFR Investments Pool 1, LLC 25|| PERRY & WESTBROOK, A PROFESSIONAL CORPORATION /s/ Gabriel J. Czop GABRIEL J. CZOP, NV Bar #14697 1701 W. Charleston Boulevard, Suite 200 Las Vegas, Nevada 89102 28 Attorneys for SBH 2 Homeowners’ Association