Bank Of New York Mellon v. Church

Opinion

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

LEACH KERN GRUCHOW ANDERSON SONG /s/ Ryan W. Reed RYAN W. REED, ESQ., NV Bar #11695 2525 Box Canyon Drive 38 Las Vegas, Nevada 89128 Attorneys for Silverstone Ranch Community Association xz