Opinion
Case No.: 2:15-cv-01463-RCJ-GWF
05-22-2017
U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE CSFB MORTGAGE SECURITIES CORP., ADJUSTABLE RATE MORTGAGE TRUST 2005-8, ADJUSTABLE RATE MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-8, Plaintiff, v. COUNTRYSIDE HOMEOWNERS ASSOCIATION; K K REAL ESTATE INVESTMENT FUND, LLC; DOE INDIVIDUALS I-X, inclusive, and ROE CORPORATIONS I-X, inclusive, Defendants.
ARIEL E. STERN, ESQ. Nevada Bar No. 8276 VATANA LAY, ESQ. Nevada Bar No. 12993 AKERMAN LLP 1160 Town Center Drive, Suite 330 Las Vegas, Nevada 89144 Telephone: (702) 634-5000 Facsimile: (702) 380-8572 Email: ariel.stern@akerman.com vatana.lay@akerman.com Attorneys for Plaintiff MAIER GUTIERREZ AYON LUIS AYON, ESQ. Nevada Bar No. 9752 8816 Spanish Ridge Avenue Las Vegas, Nevada 89148 Attorneys for Defendant KK Real Estate Investment Fund, LLC LIPSON NEILSON COLE SELTZER & GARIN P.C. JOSEPH GARIN, ESQ . Nevada Bar No. 6653 KALEB D. ANDERSON, ESQ. Nevada Bar No. 7582 DAVID OCHOA, ESQ, Nevada Bar No. 10414 9900 Covington Cross Drive, Suite 120 Las Vegas, Nevada 89144 Attorneys for Defendant Countryside Homeowners Association
ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
VATANA LAY, ESQ.
Nevada Bar No. 12993
AKERMAN LLP
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144
Telephone: (702) 634-5000
Facsimile: (702) 380-8572
Email: ariel.stern@akerman.com
vatana.lay@akerman.com
Attorneys for Plaintiff
FINAL JUDGMENT
Pursuant to the Court's order dated April 13, 2017 [ECF. No. 57], the Court hereby enters final judgment in this case as follows:
1. This action concerns the real property commonly known as 8543 Ebony Hills Way, Las Vegas, NV 89123, APN 177-15-711-001, more specifically described as:
Parcel ONE (1):
Lot ONE (1) in Block One (1) of Maryland / Pebble - Unit 3 as shown by map thereof on file in Book 69 of plats, Page 49 in the office of the County Recorder of Clark County, Nevada.
PARCEL TWO (2):
A non-exclusive easement appurtenant to Parcel One (1) for ingress, egress and of use and enjoyment in, to and over the Common Areas as set forth in the Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for Countryside recorded August 4, 1995 in Book 950804 as Document No. 00005 and re-recorded September 14, 1995 in Book 950914 as Document No. 00117, as the same may from time to time be amended and/or supplemented in the Office of the County Recorder of Clark County, Nevada
APN: 177-15-711-001
2. Plaintiff, U.S. Bank, National Association, as Trustee for the Holders of the CSFB Mortgage Securities Corp., Adjustable Rate Mortgage Trust 2005-8, Adjustable Rate Mortgage-Backed Pass-Through Certificates Series 2005-8 (U.S. Bank) is the beneficiary of a senior deed of trust (the Deed of Trust) recorded against the real property at issue in this case on May 18, 2005 as Instrument No. 20050518-0001381, which secures a loan in the original amount of $228,800.
3. Countryside Homeowners' Association (the HOA) foreclosed on the property on or about January 6, 2012. A foreclosure deed in favor of HOA was recorded January 19, 2012 as Instrument No. 201201190001522.
4. KK Real Estate Investment Fund, LLC (KKREIF) acquired the property from HOA via a QuitClaim Deed recorded on May 7, 2013 as Instrument No. 201305070003355
IT IS HEREBY ORDERED:
1. The Court has granted summary judgment in U.S. Bank's favor as to its first cause of action for quiet title and declaratory judgment. Specifically, the Court finds that Chapter 116's opt-in notice scheme is facially unconstitutional under the Due Process Clause of the Fourteenth Amendment, as foreclosure under NRS 116 involves state action that deprives a right without adequate notice. See Bourne Valley Court Tr. V. Wells Fargo Bank, N.A., 832 F.3d 1154, 1160 (9 Cir. 2016). The Court further finds that defendants provided no evidence of actual notice in this case. The HOA's foreclosure sale did not extinguish the Deed of Trust held by U.S. Bank. As a result, the title acquired by the HOA at the foreclosure sale, and the title it subsequently conveyed to KKREIF, is subject to the Deed of Trust.
2. The Deed of Trust remains a valid superior lien against the property and is superior to the interest held by KKREIF;
3. As to the remaining claims — Breach of NRS 116.1113 (Second Cause of Action); Wrongful Foreclosure against Countrywide Homeowners' Association (Third Cause of Action); and Injunctive Relief against KKREIF (Fourth Cause of Action) — these claims are dismissed without prejudice. Accordingly, all claims in this case are resolved.
4. This is the final judgment of the Court, and no further order is required. Each side will bear its own fees and costs.
DATED: This 22 day of May, 2017.
/s/_________
UNITED STATES DISTRICT JUDGE Respectfully submitted by:
AKERMAN LLP
/s/ Vatana Lay
ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
VATANA LAY, ESQ.
Nevada Bar No. 12993
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144
Attorneys for Plaintiff
MAIER GUTIERREZ AYON
/s/ Luis Ayon
LUIS AYON, ESQ.
Nevada Bar No. 9752
8816 Spanish Ridge Avenue
Las Vegas, Nevada 89148
Attorneys for Defendant KK Real Estate
Investment Fund, LLC LIPSON NEILSON COLE SELTZER &
GARIN P.C. /s/ David Ochoa
JOSEPH GARIN, ESQ .
Nevada Bar No. 6653
KALEB D. ANDERSON, ESQ.
Nevada Bar No. 7582
DAVID OCHOA, ESQ,
Nevada Bar No. 10414
9900 Covington Cross Drive, Suite 120
Las Vegas, Nevada 89144
Attorneys for Defendant Countryside
Homeowners Association