Opinion
CASE NO. 2:12-cv-02065-GMN-VCF
03-26-2013
ANDREA B. GALE, an individual, and as Trustee of Andrea Beryl Gale Revocable Living Trust, Plaintiff, v. CITIMORTGAGE, INC.; NATIONSTAR MORTGAGE, LLC; CAL-WESTERN RECONVEYANCE CORPORATION; QUALITY LOAN SERVICE as trustee, and DOES 1 through 10, and ROE CORPORATIONS 1 through 10, inclusive, Defendants. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Indispensable Party.
ROBERT J. FLUMMERFELT, ESQ. Nevada Bar #11122 CANON LAW SERVICES, LLC Attorney for Plaintiff Andrea Gale ROBERT J. FLUMMERFELT, ESQ. Nevada Bar No. 11122 CANON LAW SERVICES, LLC Attorney for Plaintiff
ROBERT J. FLUMMERFELT, ESQ.
Nevada Bar #11122
CANON LAW SERVICES, LLC
Attorney for Plaintiff Andrea Gale
MOTION FOR EXONERATION AND
DISCHARGE OF BOND
AND ORDER
COMES NOW, ANDREA B. GALE ("Plaintiff"), by and through her attorney of record, Robert J. Flummerfelt, Esq., hereby submits this motion for exoneration and discharge of bond, based on the Memorandum of Point and Authorities, the Affidavit of Andrea B. Gale, all papers on file herein, and any oral argument the court may entertain at a hearing on the matter.
AFFIDAVIT OF ANDREA B. GALE IN SUPPORT OF MOTION FOR
EXONERATION AND DISCHARGE OF BOND
STATE OF NEVADA
COUNTY OF CLARK
ANDREA B. GALE, being first duly sworn, deposes and says:
1. I am the Plaintiff in the present action.
2. 1 am over the age of 18 years old and have personal knowledge of the facts herein and competent to testify thereto.
3. On November 26, 2012, I complied with the conditions of the Temporary Restraining Order by posting a cash bond in the amount of Two Thousand Dollars ($2,000.00) with the Clerk of the District Court, Clark County, Nevada.
4. On January 11, 2013, this honorable Court denied my motion for preliminary injunction, and the Temporary Restraining Order expired.
5. On or about January 18, 2013, Fannie Mae completed their eviction and 1 was locked out of the subject property, and Fannie Mae has remained in possession of the property ever since.
6. 1 currently have no permanent residence, and have urgent need of the funds from the bond to establish a new place to live.
FURTHER AFFIANT SAYETH NAUGHT.
________________________
ANDREA B. GALE
Subscribed and Sworn to before me This 26 day of February, 2011
________________________
NOTARY PUBLIC, in and for
said County and State
MEMORANDUM OF POINTS AND AUTHORITIES
I. BACKGROUND
This action was originally filed in the District Court of Clark County, Nevada, on October 18, 2012. On December 4, 2012, Defendant Quality Loan Service Corp removed this action to this U.S. District Court. However, just prior to the removal, Plaintiff filed a motion for injunctive relief from the state court, to enjoin Federal National Mortgage Association ("Fannie Mae") from evicting Plaintiff from her home. On November 26, 2012, the court issued a Temporary Restraining Order ("TRO") to maintain the status quo until a hearing on Plaintiff's motion for preliminary injunction could be held. (See, TRO, Ex.1). The court set the bond for the TRO in the amount of $2,000.00. On November 26, 2012, Plaintiff posted the bond for $2,000.00 dollars, with the Clerk of the District Court, Clark County, Nevada. (See, Bond Receipt, Ex. 2).
On December 28, 2012, this Court held the hearing on Plaintiff's motion for preliminary injunction, and on January 11, 2013, the Court entered an order denying Plaintiffs motion for preliminary injunction, and the TRO expired. On or about January 18, 2013, Fannie Mae evicted Plaintiff from the property and is now in possession of the property.
II. ARGUMENT
A. THE BOND SHOULD BE EXONERATED BECAUSE ALL CONDITIONS FOR THE BOND HAVE BEEN SATISFIED AND ARE NOW MOOT
Since January 11, 2013, the TRO has expired, the preliminary injunction was denied, and Fannie Mae has taken possession of the property. Since all grounds for the posting of the bond are now moot, the bond should be exonerated and discharged back to Plaintiff as soon as practicable. Plaintiff is currently without a permanent home and is in need of the bond money to secure a new residence.
CONCLUSION
Based on the above, Plaintiff respectfully requests this Court enter an order directing the Clerk of the District Court, Clark County, Nevada, to release the bond and return the sum of $2,000.00 to Plaintiff.
________________________
ROBERT J. FLUMMERFELT, ESQ.
Nevada Bar No. 11122
CANON LAW SERVICES, LLC
Attorney for Plaintiff
ORDER
The Court having read the foregoing Motion for Exoneration and Discharge of Bond, and the Affidavit of Andrea B. Gale, and the Memorandum of Points and Authorities in Support of the Motion, and good cause appearing therefore, hereby orders as follows:
IT IS HEREBY ORDERED that the bond posted by Andrea B. Gale on November 26, 2012 (Receipt No. 2012-144958-CCCLK) in the amount of TWO THOUSAND DOLLARS be released and the monies returned to ANDREA B. GALE, forthwith, by the Clerk of the Eighth Judicial District Court for Clark County, Nevada in Case No. A-12-670503-C.
________________________
Gloria M. Navarro
United States District Judge
EXHIBIT "1"
DISTRICT COURT
CLARK COUNTY, NEVADA
Title to Property
COURT MINUTES
A-12-670503-C Andrea Gale, Plaintiff(s) vs. Citimortgage Inc, Defendant(s)
Chambers
Minute Order
Minute Order Re: Temporary
Restraining Order
HEARD BY: Israel, Ronald J. COURT CLERK: Kathy Klein PARTIES
PRESENT: none
COURTROOM:
JOURNAL ENTRIES
- Upon Court's review of the papers and pleadings in this matter of the Temporary Restraining Order (TRO); COURT ORDERED, Motion for TRO, GRANTED, With a BOND of $2,000.00. Matter to be set by Master Calendar for a Preliminary Injunction Hearing.