Opinion
Case No.: 2:12-cv-00328-GMN-(CWH)
2013-10-23
DIMITRITZA TOROMANOVA, an Individual, Plaintiff, v. WELLS FARGO BANK, N.A.; WACHOVIA MORTGAGE, FSB; WORLD SAVINGS BANK, FSB; NATIONAL CITY MORTGAGE; NATIONAL DEFAULT SERVICING CORP; GOLDEN WEST SAVINGS ASSOCIATION SERVICE CO.; and DOES 1-10, inclusive, Defendants.
DAVID J. MERRILL MORGAN F. SHAH DAVID J. MERRILL, P.C. Attorneys for Wells Fargo Bank, N.A.
DAVID J. MERRILL
MORGAN F. SHAH
DAVID J. MERRILL, P.C.
Attorneys for Wells Fargo Bank, N.A.
MOTION TO EXPUNGE LIS
PENDENS AND ORDER
Defendant Wachovia Mortgage, a division of Wells Fargo Bank, N.A., formerly known as Wachovia Mortgage, FSB ("Wells Fargo") moves this court for an order expunging the lis pendens the plaintiff, Dimitritza Toromanova ("Toromanova"), recorded with the Clark County Recorder as Instrument No. 201202100002038 on February 10, 2012 in connection with this action. Wells Fargo bases this motion on the following memorandum of points and authorities, the papers on file with this Court, including the Complaint, any documents incorporated by reference or attached to the Complaint, recorded documents which the Court may take judicial notice of, and any oral argument that this Court may entertain.
DAVID J. MERRILL, P.C.
By: ________________
DAVID J. MERRILL
MORGAN F. SHAH
10161 Park Run Drive, Suite 150
Las Vegas, Nevada 89145
(702) 566-1935
Attorneys for Wells Fargo Bank, N.A.
MEMORANDUM OF POINTS AND AUTHORITIES
Toromanova commenced this action by filing a Complaint in the Eighth Judicial District Court, Clark County, Nevada on February 10, 2012, concerning real property located at 2912 Hot Cider Avenue, North Las Vegas, Nevada 89031 (the "Property"). In connection with the action, Toromanova filed a Notice of Lis Pendens, which Toromanova also recorded with the Clark County Recorder on February 10, 2012, as Instrument No. 201202100002038. Wells Fargo removed the action to this Court and subsequently responded to the Complaint by filing a Motion to Dismiss and to Expunge Lis Pendens, which defendant National Default Servicing Corporation ("NDSC") joined. On June 25, 2012, this Court entered an order dismissing Toromanova's claims with prejudice as to Wells Fargo, and with leave to amend her third and fourth causes of action as against NDSC. Because the Court granted Toromanova leave to amend two causes of action as to NDSC, the Court declined to expunge the lis pendens at that time. Toromanova then filed an amended complaint purporting to join new defendants to the action and alleging new causes of action against all parties, including Wells Fargo. Consequently, Wells Fargo again filed a motion to dismiss (Doc. #23). In addition, NDSC filed a Motion to Strike Plaintiff's Amended Complaint and to Dismiss Case (Doc. # 28). On March 28, 2013, this Court entered an order dismissing Toromanova's claims with prejudice and directing the Clerk of the Court to enter judgment in favor of Wells Fargo and NDSC.
See Notice of Lis Pendens, attached hereto as Exhibit 1.
(Doc. # 21)
See id. at 11, n. 5.
(Doc. # 39).
Under NRS 14.010, "[i]n an action . . . affecting the title or possession of real property, the plaintiff, at the time of filing the complaint . . . shall record with the recorder of the county in which the property, or some part thereof, is situated, a notice of pendency of the action . . . ." "The purpose of recording the lis pendens is to give 'constructive notice to a purchaser or encumbrancer of the property affected thereby' that the title to the property is disputed." When such an action is dismissed, however, the lis pendens must be cancelled. Here, the Court entered an order dismissing Toromanova's claims with prejudice. Accordingly, there is no longer an action affecting the title or possession of the Property. Therefore, Wells Fargo respectfully requests that the Court enter an order expunging the lis pendens Toromanova recorded against the Property in connection with this action on February 10, 2012, as Instrument No. 201202100002038.
See Coury v. Tran, 111 Nev. 652, 655, 895 P.2d 650, 652 (1995) (quoting NRS 14.010(3)).
See, e.g., Johnson v. Truckee River Highlands HOA, 2010 WL 4974869, *5 (D. Nev. Nov. 29, 2010) ("[B]ecause the case is dismissed there is no longer an action pending affecting the title or possession of the property"); Rivera v. Nat'l Default Serv. Corp., 2012 WL 2789015, *4 (D. Nev. Jul. 6, 2012); Madrigal v. ReconTrust Co., N.A., 2012 WL 2047992, *4 (D. Nev. Jun. 6, 2012).
See generally Order (Mar. 28, 2013) (Doc. #39).
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ORDER
IT IS SO ORDERED this 23rd day of October, 2013.
________________
Gloria M. Navarro
United States District Judge
DAVID J. MERRILL, P.C.
By: ________________
DAVID J. MERRILL
MORGAN F. SHAH
10161 Park Run Drive, Suite 150
Las Vegas, Nevada 89145
(702) 566-1935
Attorneys for Wells Fargo Bank, N.A.
EXHIBIT 1
Inst #: 201202100002038
Feea: $19.00
N/C Fee: $0.00
02/10/2012 02:32:22 PM
Receipt*: 1063401
Requestor:
DIMITRITZA TOROMANOVA
Recorded By: SCA Pga: 3
DEBBIE CONWAY
CLARK COUNTY RECORDER
RECORDING COVER PAGE
Must be typed or printed clearly in black ink only.
APN# ________________________________
11 digit Assessor's Parcel Number may be obtained at.
http://redrock.co.clark.nv.us/assrrealprop/ownr.aspx
TITLE OF DOCUMENT (DO NOT Abbreviate)
Title of the Document on cover page muet be EXACTLY as It appears on the first page of the document to be recorded. Recording requested by: Return to: Name ________________ Address ________________ City/State/Zip ________________ This page provides additional information required by NRS 111.312 Sections 1-2. An additional recording fee of $1.00 will apply. To print this document properly—do not use page scaling. P:\Recorder\Forms 12_2010 Dimitritza Toromanova
2912 Hot Cider Av.
N.Las Vegas, NV 89031
CLAIMANT
DISTRICT COURT
CLARK COUNTY OF NEVADA
Dimitritza Toromanova Plaintiff,
v.
WELLS FARGO, N.A;,WACHOVIA MORTGAGE, FSB;
NATIONAL DEFAULT SERVICING CORPORATION et al;
and DOES 1-10, Defendants
Case no. A-12-656295-C
NOTICE OF LIS PENDENS
You are hereby notified that on the 10th of February, 2012, suit was instituted by the undersigned in the District Court, Clark County, Nevada Case No.
The following described real estate property situated in Clark County Nevada, is involved in said suit to wit: PARCEL NO. 124-32-415-039
AT 2912 HOT CIDER AV, N.Las Vegas, NV, 89031
The nature of the suit is, to acquire unencumbered Quiet Title in her name, that all monies fraudulently collected returned per law, and all fines for violations be paid, to Plaintiff.
CASE LAW
Commonwealth of Massachusetts the Trial Court Department Memorandum and order on
the Plaintiffs' Motions to Vacate Judgment U.S. BANK NATIONAL ASSOICATION V
Antonio Ibanez case no. 08 MISC 384283 (KCL) and WELLS FARGO BANK
V. Mark A Larace and Tammy L. Larace Case no. 08 MISC 386744 KCL
To accept the plaintiffs' arguments is to allow them to take someone's home without any demonstrable right to do so, based upon the assumption that they ultimately will be able to show that they have that right and the further assumption that potential bidders will be undeterred by the lack of a demonstrable legal foundation for the sale and will nonetheless bid full value in the expectation that thatfoundation will ultimately be produced, even if it takes a year or more. The law recognizes the troubling nature of these assumptions, the harm caused if those assumptions proved erroneous, and commands otherwise. For the foregoing reasons, the plaintiffs' motions to vacate the Judgment in these cases are DENIED SO ORDERED BY THE COURT (Long, J.) Dated 14 October 2009
WITNESS MY SIGNATURE this the 10th of FEB 2012 Respectfully Submitted, Without recourse ________________
Dimitriza Toromanova
CERTIFIED COPY
DOCUMENT ATTACHED ISA TRUE AND CORRECT COW OF THE ORIGINAL ON FILE
________________
CLERK OF THE COURT