Opinion
Case No.: 2:17-cv-02327-RFB-PAL
12-06-2017
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2006-41CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-41CB, Plaintiff, v. SOUTHERN HIGHLAND COMMUNITY ASSOCIATION, a Nevada non-profit corporation, Defendants
WRIGHT, FINLAY & ZAK, LLP Edgar Smith, Esq. Nevada Bar No. 5506 Christina V. Miller, Esq. Nevada Bar No. 12448 7785 W. Sahara Avenue, Suite 200 Las Vegas, NV 89117 (702) 475-7964; Fax: (702) 946-1345 esmith@wrightlegal.net Attorneys for Plaintiff THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2006-41CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-41CB
WRIGHT, FINLAY & ZAK, LLP
Edgar Smith, Esq.
Nevada Bar No. 5506
Christina V. Miller, Esq.
Nevada Bar No. 12448
7785 W. Sahara Avenue, Suite 200
Las Vegas, NV 89117
(702) 475-7964; Fax: (702) 946-1345
esmith@wrightlegal.net
Attorneys for Plaintiff THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2006-41CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-41CB
THE BANK OF NEW YORK MELLON'S APPLICATION FOR TIME TO SERVE COMPLAINT AGAINST SOUTHERN HIGHLAND COMMUNITY ASSOCIATION
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2006-41CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-41CB (hereinafter "BNYM" or "Plaintiff") by and through its attorneys of record, Christina V. Miller, Esq. and Edgar C. Smith, Esq. of the law firm of Wright, Finlay & Zak, LLP, hereby move for an order extending the time in which to serve process on Defendant SOUTHERN HIGHLAND COMMUNITY ASSOCIATION by a period of forty-five (45) days.
This Application is based on the attached Memorandum of Points and Authorities, all papers and pleadings filed herein, and on any oral or documentary evidence that may be presented at a hearing on this matter.
DATED this 4th day of December, 2017
WRIGHT FINLAY & ZAK LLP
/s/ Edgar Smith , Esq.
Edgar Smith, Esq.
Nevada Bar No. 5506
Christina V. Miller, Esq.
Nevada Bar No. 11310
7785 W. Sahara Ave., Suite 200
Las Vegas, NV, 89117
(702) 475-7964; Fax: (702) 946-1345
esmith@wrightlegal.net
Attorneys for Plaintiff
MEMORANDUM OF POINTS AND AUTHORITIES
I. STATEMENT OF FACTS
On September 5, 2017, BNYM filed a Complaint for Wrongful Foreclosure, Unjust Enrichment, and Breach of Contract against Defendant Southern Highland Community Association. However, at the time the Complaint was filed, BNYM was aware that the required Nevada Real Estate Division ("NRED") mediation with the HOA had not yet been completed. Absent completion of the NRED mediation with the HOA, the Complaint was subject to a possible Motion to Dismiss based on lack of jurisdiction. For that reason, BNYM did not attempt to serve the complaint so as to permit the NRED process to finish first.
The NRED mediation proceeding went forward on November 15, 2017. However, based on the results from that mediation and Nevada Supreme Court precedent which issued within the past two weeks, including Nationstar v. Saticoy Bay LLC Series 2227 Shadow Canyon, 133 Nev. Adv. Op. 91 (Nov. 22, 2017) and U.S. Bank National Association vs. Nevada New Builds, LLC, Case No. 69421, Order of Affirmance Filed Nov. 29, 2017, BNYM became aware of a need to amend its Complaint prior to service on the HOA.
BNYM is currently in the process of drafting an Amended Complaint and anticipates filing that document within the next 10 days. Therefore, BNYM respectfully requests that the designated period of time to complete service of process be extended for forty-five (45) days from the date that an Order is entered in this case
II. LEGAL ARGUMENTS
A. EXTENDING TIME TO SERVE.
Federal Rules of Civil Procedure (F.R.C.P.) 4(m) states, in pertinent part, that
If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
In the instant case, good cause exists to extend the time for service. The complaint was filed so that it was timely. BNYM did not serve the summons and complaint, because the complaint would have been ripe for the HOA to file a Motion to Dismiss for lack of jurisdiction. NRED mediation with the HOA had not then been completed.
Mediation was completed November 15, 2017, and BNYM was prepared to go forward. However, the Nevada Supreme Court has issued two significant decisions since that date, and BNYM's counsel had to evaluate the new decisions on the claims for relief. BNYM has determined that the complaint should be amended before service. In addition, information learned at the mediation relevant to the Amended Complaint allegations is also being incorporated into the amended pleading. BNYM will file the same within the next ten days.
In order to provide time to serve the Summons and yet to be filed Amended Complaint, BNYM requests that this Court enter an order enlarging the time period for service of the Summons and Amended Complaint in this case by forty-five (45) days.
III. CONCLUSION
Based on the above, BNYM respectfully requests that the period for service of process in this matter be extended by forty-five (45) days, for the purpose of allowing BNYM to file an Amended Complaint and serve the HOA with the same.
DATED this 4th day of December, 2017
WRIGHT FINLAY & ZAK LLP
/s/ Edgar Smith , Esq.
Edgar Smith, Esq.
Nevada Bar No. 5506
Christina V. Miller, Esq.
Nevada Bar No. 11310
7785 W. Sahara Ave., Suite 200
Las Vegas, NV, 89117
(702) 475-7964; Fax: (702) 946-1345
esmith@wrightlegal.net
Attorneys for Plaintiff IT IS SO ORDERED this 6th day of December, 2017.
/s/_________
Peggy A. Leen
United States Magistrate Judge