The Bank of New York Mellon v. Khosh

D. Nevada

The Bank of New York Mellon v. Khosh

DecidedOctober 2, 2019

Docket2:17-cv-00957

StatusUnknown

This text of The Bank of New York Mellon v. Khosh (The Bank of New York Mellon v. Khosh) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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The Bank of New York Mellon v. Khosh, (D. Nev. 2019).

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2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 7 THE BANK OF NEW YORK MELLON Case No. 2:17-cv-00957-MMD-PAL FKA THE BANK OF NEW YORK, AS 8 TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, ORDER 9 INC., ALTERNATIVE LOAN TRUST 2005-54CB, 10 Plaintiff, 11 v. 12 AMIR A. KHOSH; SFR INVESTMENTS POOL 1, LLC; ARBOR PARK 13 COMMUNITY ASSOCIATION; DOE INDIVIDUALS I-X, inclusive, and ROE 14 CORPORATIONS I-X, inclusive, 15 Defendants. 16 SFR INVESTMENTS POOL 1, LLC, 17 Counter/Crossclaimant, v. 18 THE BANK OF NEW YORK MELLON 19 FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE 20 CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 21 2005-54CB; ACCREDITED HOME LENDERS, INC.; AMIR A. KHOSH, an 22 individual, 23 Counter/Crossdefendants. 24 This action concerns the foreclosure sale of real property located at 5409 Orchid 25 Lilly Court, North Las Vegas, NV 89031 (“Property”) to satisfy a homeowners’ association 26 lien (“HOA Sale”). Before the Court is Plaintiff/Counter-Defendant BoNYM’s1 motion for 27 default judgment against Cross-Defendant Amir A. Khosh (“Borrower”) on the sole 28 1BoNYM is the acronym used herein to refer to The Bank of New York Mellon fka 2 13.) BoNYM has also moved to file certain exhibits attached to its motion under seal. 3 (ECF Nos. 89, 90 (sealed).) The Court will grant the motion to seal in its entirety but 4 dismiss the claim and deny the motion for default judgment as moot.2 5 The Court finds that the breach of contract claim is time-barred by the applicable 6 statute of limitations period. The statute of limitations period for a breach of contract claim 7 under Nevada law is six years. See NRS § 11.190. Here, both the Amended Complaint 8 (ECF No. 22 at 12) and BoNYM’s exhibit (ECF No. 88-1 at 4) indicate that Borrower 9 defaulted on his loan payment as of the summer of 2010. BoNYM brought this lawsuit in 10 April 2017, long after the statute of limitations period had passed. Accordingly, BoNYM’s 11 claim against Borrower is too late and the Court dismisses it for that reason. Therefore, 12 BoNYM’s motion for default judgment (ECF No. 88) is denied as moot. 13 However, the Court finds compelling reasons to grant BoNYM’s motion to seal 14 Exhibits B and E accompanying BoNYM’s motion for default judgment. (ECF Nos. 89, 15 90.) 16 In the Ninth Circuit there is “a strong presumption in favor of access to court 17 records.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 984, 993 (9th Cir. 2008). To 18 overcome this presumption, a party must articulate “compelling reasons” justifying 19 nondisclosure, such as use of the record to gratify spite, permit public scandal, circulate 20 libelous statements, or release trade secrets. Kamakana v. City of Honolulu, 447 F.3d 21 1172, 1179 (9th Cir. 2006). “The mere fact that the production of records may lead to a 22 litigant’s embarrassment, incrimination, or exposure to further litigation will not, without 23 more, compel the court to seal its records.” Id. The public interest in full disclosure of 24 documents is grounded upon the “ensuring the ‘public’s understanding of the judicial 25 process and of significant public events.’” Id. (citations omitted). The court has inherent 26 power over its own records and files, and access may be denied where the court 27 determines that the documents may be used for improper purposes. Nixon v. Warner 28 /// 1 || Comm., Inc., 435 U.S. 589, 598 (1978); Hagestad v. Tragesser, 49 F.3d 1430, 1433-34 2 || (9th Cir. 1995); Kamakana, 447 F.3d at 1179. 3 BoNYM raises compelling reasons justifying the filing under seal of Exhibits B and 4 || E. The exhibits contain Borrower's promissory note and payment information identifying 5 || the balance of the loan. (ECF No. 90 (sealed).) The public has no significant need to 6 || access this information and its dissemination could result in unnecessary economic or 7 || emotional harm to Borrower. Accordingly, the Court grants BoONYM’s motion to seal. 8 It is therefore ordered that BONYM’s claim for breach of contract against Borrower 9 || is dismissed because it is time-barred. 10 It is further ordered that BONYM’s motion for default judgment (ECF No. 88) is 11 || denied as moot. 12 It is further ordered that BONYM’s motion to seal (ECF No. 89) is granted. 13 It is further ordered that the Clerk of Court will enter final judgment in accordance 14 || with this order and the Court’s order at ECF No. 80 and close this case. 15 DATED THIS 2" day of October 2019.

17 MRANDA MBO 18 CHIEF UNITED STATES DISTRICT JUDGE

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2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 7 THE BANK OF NEW YORK MELLON Case No. 2:17-cv-00957-MMD-PAL FKA THE BANK OF NEW YORK, AS 8 TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, ORDER 9 INC., ALTERNATIVE LOAN TRUST 2005-54CB, 10 Plaintiff, 11 v. 12 AMIR A. KHOSH; SFR INVESTMENTS POOL 1, LLC; ARBOR PARK 13 COMMUNITY ASSOCIATION; DOE INDIVIDUALS I-X, inclusive, and ROE 14 CORPORATIONS I-X, inclusive, 15 Defendants. 16 SFR INVESTMENTS POOL 1, LLC, 17 Counter/Crossclaimant, v. 18 THE BANK OF NEW YORK MELLON 19 FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE 20 CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 21 2005-54CB; ACCREDITED HOME LENDERS, INC.; AMIR A. KHOSH, an 22 individual, 23 Counter/Crossdefendants. 24 This action concerns the foreclosure sale of real property located at 5409 Orchid 25 Lilly Court, North Las Vegas, NV 89031 (“Property”) to satisfy a homeowners’ association 26 lien (“HOA Sale”). Before the Court is Plaintiff/Counter-Defendant BoNYM’s1 motion for 27 default judgment against Cross-Defendant Amir A. Khosh (“Borrower”) on the sole 28 1BoNYM is the acronym used herein to refer to The Bank of New York Mellon fka 2 13.) BoNYM has also moved to file certain exhibits attached to its motion under seal. 3 (ECF Nos. 89, 90 (sealed).) The Court will grant the motion to seal in its entirety but 4 dismiss the claim and deny the motion for default judgment as moot.2 5 The Court finds that the breach of contract claim is time-barred by the applicable 6 statute of limitations period. The statute of limitations period for a breach of contract claim 7 under Nevada law is six years. See NRS § 11.190. Here, both the Amended Complaint 8 (ECF No. 22 at 12) and BoNYM’s exhibit (ECF No. 88-1 at 4) indicate that Borrower 9 defaulted on his loan payment as of the summer of 2010. BoNYM brought this lawsuit in 10 April 2017, long after the statute of limitations period had passed. Accordingly, BoNYM’s 11 claim against Borrower is too late and the Court dismisses it for that reason. Therefore, 12 BoNYM’s motion for default judgment (ECF No. 88) is denied as moot. 13 However, the Court finds compelling reasons to grant BoNYM’s motion to seal 14 Exhibits B and E accompanying BoNYM’s motion for default judgment. (ECF Nos. 89, 15 90.) 16 In the Ninth Circuit there is “a strong presumption in favor of access to court 17 records.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 984, 993 (9th Cir. 2008). To 18 overcome this presumption, a party must articulate “compelling reasons” justifying 19 nondisclosure, such as use of the record to gratify spite, permit public scandal, circulate 20 libelous statements, or release trade secrets. Kamakana v. City of Honolulu, 447 F.3d 21 1172, 1179 (9th Cir. 2006). “The mere fact that the production of records may lead to a 22 litigant’s embarrassment, incrimination, or exposure to further litigation will not, without 23 more, compel the court to seal its records.” Id. The public interest in full disclosure of 24 documents is grounded upon the “ensuring the ‘public’s understanding of the judicial 25 process and of significant public events.’” Id. (citations omitted). The court has inherent 26 power over its own records and files, and access may be denied where the court 27 determines that the documents may be used for improper purposes. Nixon v. Warner 28 /// 1 || Comm., Inc., 435 U.S. 589, 598 (1978); Hagestad v. Tragesser, 49 F.3d 1430, 1433-34 2 || (9th Cir. 1995); Kamakana, 447 F.3d at 1179. 3 BoNYM raises compelling reasons justifying the filing under seal of Exhibits B and 4 || E. The exhibits contain Borrower's promissory note and payment information identifying 5 || the balance of the loan. (ECF No. 90 (sealed).) The public has no significant need to 6 || access this information and its dissemination could result in unnecessary economic or 7 || emotional harm to Borrower. Accordingly, the Court grants BoONYM’s motion to seal. 8 It is therefore ordered that BONYM’s claim for breach of contract against Borrower 9 || is dismissed because it is time-barred. 10 It is further ordered that BONYM’s motion for default judgment (ECF No. 88) is 11 || denied as moot. 12 It is further ordered that BONYM’s motion to seal (ECF No. 89) is granted. 13 It is further ordered that the Clerk of Court will enter final judgment in accordance 14 || with this order and the Court’s order at ECF No. 80 and close this case. 15 DATED THIS 2" day of October 2019.

17 MRANDA MBO 18 CHIEF UNITED STATES DISTRICT JUDGE

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