Kabadian v. Bank of America

Nevada Supreme Court

Kabadian v. Bank of America

DecidedJuly 24, 2013

Docket58418

StatusUnpublished

This text of Kabadian v. Bank of America (Kabadian v. Bank of America) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kabadian v. Bank of America, (Neb. 2013).

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matters of public record and any exhibit attached to the complaint or incorporated by record into the complaint when ruling on a motion to dismiss. Breliant v. Preferred Equities Corp., 109 Nev. 842, 847, 858 P.2d 1258, 1261 (1993). While the district court's conclusion that MERS had authority to foreclose on its own behalf is incorrect, see Edelstein v. Bank of N.Y Mellon, 128 Nev. , 286 P.3d 255 (2012) (holding that Nevada law requires unity of deed of trust and promissory note prior to foreclosure); Bergenfield v. Bank of Am., 129 Nev. , P.3d (Adv. Op. No. 40, June 6, 2013), the record on appeal together with the public records included by respondents in their response to appellant's appeal statement demonstrates that MERS assigned the deed of trust together with the promissory note to respondent HSI3C Bank, N.A., reunifying the interests.' Subsequently, respondent Recontrust Company, as trustee of the deed of trust, recorded the notice of trustee's sale initiating the actual sale that appellant sought to prevent. Based on the MERS assignment, HSBC had authority to proceed with the trustee's sale, and the district court therefore properly dismissed appellant's complaint. Leyva v. Nat'l Default Servicing Corp., 127 Nev. , 255 P.3d 1275, 1281 (2011) (holding that evidence of transfer of the note is sufficient to prove holder status); Edelstein, 128 Nev. at , 286 P.3d at 260-61 (holding that a

'Respondents requested judicial notice of the corporate assignment of the deed of trust conveying beneficial interest in the deed of trust and transferring the promissory note to HSBC. We grant the request and take judicial notice of the assignment. NRS 47.130(2); Yellow Cab of Reno, Inc. v. Second Judicial Dist. Court, 127 Nev. , n.4, 262 P.3d 699, 704 n.4 (2011).

SUPREME COURT OF NEVADA 2 (0) 1947A MERS assignment of the deed of trust along with the promissory note demonstrates valid transfer of both instruments). Accordingly, we ORDER the judgment of the district court AFFIRMED.

cc: Hon. Timothy C. Williams, District Judge Anahit Kabadian Akerman Senterfitt/Las Vegas Tiffany & Bosco, P. A. Reisman Sorokac Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (0) 1947A

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matters of public record and any exhibit attached to the complaint or incorporated by record into the complaint when ruling on a motion to dismiss. Breliant v. Preferred Equities Corp., 109 Nev. 842, 847, 858 P.2d 1258, 1261 (1993). While the district court's conclusion that MERS had authority to foreclose on its own behalf is incorrect, see Edelstein v. Bank of N.Y Mellon, 128 Nev. , 286 P.3d 255 (2012) (holding that Nevada law requires unity of deed of trust and promissory note prior to foreclosure); Bergenfield v. Bank of Am., 129 Nev. , P.3d (Adv. Op. No. 40, June 6, 2013), the record on appeal together with the public records included by respondents in their response to appellant's appeal statement demonstrates that MERS assigned the deed of trust together with the promissory note to respondent HSI3C Bank, N.A., reunifying the interests.' Subsequently, respondent Recontrust Company, as trustee of the deed of trust, recorded the notice of trustee's sale initiating the actual sale that appellant sought to prevent. Based on the MERS assignment, HSBC had authority to proceed with the trustee's sale, and the district court therefore properly dismissed appellant's complaint. Leyva v. Nat'l Default Servicing Corp., 127 Nev. , 255 P.3d 1275, 1281 (2011) (holding that evidence of transfer of the note is sufficient to prove holder status); Edelstein, 128 Nev. at , 286 P.3d at 260-61 (holding that a

'Respondents requested judicial notice of the corporate assignment of the deed of trust conveying beneficial interest in the deed of trust and transferring the promissory note to HSBC. We grant the request and take judicial notice of the assignment. NRS 47.130(2); Yellow Cab of Reno, Inc. v. Second Judicial Dist. Court, 127 Nev. , n.4, 262 P.3d 699, 704 n.4 (2011).

SUPREME COURT OF NEVADA 2 (0) 1947A MERS assignment of the deed of trust along with the promissory note demonstrates valid transfer of both instruments). Accordingly, we ORDER the judgment of the district court AFFIRMED.

cc: Hon. Timothy C. Williams, District Judge Anahit Kabadian Akerman Senterfitt/Las Vegas Tiffany & Bosco, P. A. Reisman Sorokac Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (0) 1947A

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