Bank Of New York Mellon v. Maryland Pebble At Silverado Homeowners Association et al, No. 2:2017cv00372 - Document 75 (D. Nev. 2019)
Court Description: ORDER granting Plaintiff's ECF No. 63 Motion for Summary Judgment as to Plaintiff's first claim for relief, dismissing as moot Plaintiff's remaining claims; granting in part and denying in part Aaron Dean& #039;s ECF No. 57 Lien Motion; directing the parties to file a joint status report within 14 days re the impact of this order on LVEG's unjust enrichment counterclaim (ECF No. 19 at 23-25); directing Clerk to enter judgment in Plaintiff's favor in accordance with this order. Signed by Judge Miranda M. Du on 4/12/2019. (Copies have been distributed pursuant to the NEF - KR)
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Bank Of New York Mellon v. Maryland Pebble At Silverado Homeowners Association et al Doc. 75 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 7 8 9 BANK OF NEW YORK MELLON AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 200517, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-17 F/KA BANK OF NEW YORK, 10 Plaintiff, MARYLAND PEBBLE AT SILVERADO HOMEOWNERS ASSOCIATION; et al., 13 Defendants. 14 AND ALL RELATED CASES 15 ORDER v. 11 12 Case No. 2:17-cv-00372-MMD-PAL I. SUMMARY 16 This case arises from the foreclosure sale of property to satisfy a homeowners’ 17 association lien. Before the Court is Plaintiff Bank Of New York Mellon as Trustee for the 18 Certificateholders of CWALT, Inc., Alternative Loan Trust 2005-17, Mortgage Pass- 19 Through Certificates, Series 2005-17, f/k/a Bank of New York’s renewed motion for 20 summary judgment (the “Motion”) (ECF No. 63),1 and Defendant Las Vegas Equity Group, 21 LLC’s (“LVEG”) former attorney Aaron R. Dean’s motion to adjudicate his attorney’s lien 22 (“Lien Motion”) (ECF No. 57). Because the Court agrees with Plaintiff that it properly 23 tendered the superpriority amount—and as explained below—the Court will grant 24 25 26 27 1LVEG filed a response (ECF No. 68), and Plaintiff filed a reply (ECF No. 69). Defendants Maryland Pebble at Silverado Homeowners Association (the “HOA”), ATC Assessment Collection Group, LLC f/k/a Angius & Terry Collections, LLC (“ATC”), and Kris Pacada did not file responses to Plaintiff’s Motion. 28 Dockets.Justia.com 1 Plaintiff’s Motion. The Court also grants in part and denies in part Dean’s Lien Motion 2 because the fees he seeks are reasonable, and he has complied with the applicable 3 Nevada statue, but his request for fees incurred in preparing the Lien Motion is 4 unsupported. 5 II. RELEVANT BACKGROUND 6 The following facts are undisputed unless otherwise indicated. 7 In March 2005, Kris Pacada and Robin Pacada (“Borrowers”) obtained a loan for 8 $280,000 (“Loan”) and executed a note secured by a deed of trust (“DOT”) on the real 9 property located at 8901 Living Rose Street, Las Vegas, Nevada 89123 (“the Property”). 10 (ECF No. 63-1 at 2-4.) The DOT was assigned to Plaintiff in October 2011. (Id. at 25.) 11 Borrowers failed to pay HOA assessments, and the HOA recorded a notice of 12 delinquent assessment lien in July 2011, identifying the amount due to the HOA to date 13 as $973.31.2 (Id. at 30.) The HOA recorded a notice of default and election to sell on 14 September 2, 2011, identifying the amount due to the HOA to date as $1,803.54. (Id. at 15 32.) On August 6, 2013, the HOA recorded a notice of sale through ATC stating that 16 $3,383.34 was owed to the HOA, including ATC’s costs and fees. (Id. at 35-36.) 17 Counsel for the Loan’s prior servicer, Bank of America, N.A., acting through its 18 agent (the law firm “Miles Bauer”), requested from ATC a calculation of the superpriority 19 portion of the HOA’s lien and offered to pay that amount.3 (Id. at 42-43.) ATC responded 20 with a demand statement, which included a ledger showing all amounts allegedly due. 21 (Id. at 45-48.) The ledger provided by ATC states that the periodic assessment due on 22 the Property was $39.59. (Id. at 46.) Further, the ledger indicates Borrowers owed four of 23 24 25 26 27 2The notice was recorded by Defendant ATC, acting as agent for the HOA. (ECF No. 63-1 at 30.) offers the affidavit of Douglas E. Miles (“Miles Affidavit”), the managing partner of Miles Bauer, who authenticated Miles Bauer’s business records and explained the information contained within Miles Bauer’s records attached to his affidavit. (ECF No. 63-1 at 38-40.) 3Plaintiff 28 2 1 these, for a total of $158.36. (Id.) The ledger also indicates one $10 charge for “Clerical 2 – bare spots on lawn;” one $10 charge for “Clerical – remove dead fronds on palm tree;” 3 and one $10 charge for “Clerical – Trim Plants.” (Id.) 4 Miles Bauer apparently calculated that nine months of assessments on the 5 Property was $197.254 and tendered that amount (“the Check”), to ATC on December 28, 6 2011. (Id. at 50-53.) Miles Bauer’s records show the Check was “rejected” by ATC. (Id. at 7 54.) The HOA proceeded with the foreclosure sale on October 8, 2013 (the “HOA 8 9 Sale”), and LVEG purchased the Property at the HOA Sale for $8,200. (Id. at 60-61.) 10 Plaintiff asserts claims for: (1) quiet title/declaratory judgment against all 11 Defendants; (2) breach of NRS § 116.1113 against ATC and the HOA; (3) wrongful 12 foreclosure against the HOA and ATC; (4) injunctive relief against LVEG; (5) deceptive 13 trade practices against the HOA and ATC; and (6) judicial foreclosure against Borrowers. 14 (ECF No. 1 at 7-16.) LVEG later filed a third-party complaint including claims for quiet title 15 against Plaintiff and Borrowers, and unjust enrichment against Plaintiff. (ECF No. 19 at 16 20-24.) 17 III. LEGAL STANDARD 18 “The purpose of summary judgment is to avoid unnecessary trials when there is 19 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 20 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 21 pleadings, the discovery and disclosure materials on file, and any affidavits “show that 22 there is no genuine issue as to any material fact and that the moving party is entitled to a 23 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue 24 is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder 25 could find for the nonmoving party and a dispute is “material” if it could affect the outcome 26 27 4As discussed infra, it is unclear to the Court how Miles Bauer calculated this amount, and Plaintiff has not clarified how Miles Bauer calculated this amount. (ECF No. 63 at 3, 69 at 2-4.) 28 3 1 of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 2 (1986). Where reasonable minds could differ on the material facts at issue, however, 3 summary judgment is not appropriate. See id. at 250-51. “The amount of evidence 4 necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to 5 resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 6 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 7 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and 8 draws all inferences in the light most favorable to the nonmoving party. See Kaiser 9 Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 10 The moving party bears the burden of showing that there are no genuine issues of 11 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 12 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 13 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 14 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings 15 but must produce specific evidence, through affidavits or admissible discovery material, 16 to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 17 1991), and “must do more than simply show that there is some metaphysical doubt as to 18 the material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) 19 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). 20 “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be 21 insufficient.” Anderson, 477 U.S. at 252. 22 IV. 23 24 DISCUSSION The Court first addresses Plaintiff’s Motion, and then Dean’s Lien Motion. A. Plaintiff’s Motion 25 Plaintiff argues it is entitled to summary judgment on its declaratory relief/quiet title 26 claim because, in pertinent part, Plaintiff tendered the superpriority portion of the HOA’s 27 lien when Plaintiff’s agent sent the Check to the HOA’s agent. (ECF No. 63 at 12-13.) The 28 4 1 Court agrees that Plaintiff properly tendered more than the superpriority amount, and 2 accordingly declines to address the parties’ other arguments in Plaintiff’s Motion and 3 LVEG’s response. 4 In several recent decisions, the Nevada Supreme Court effectively put to rest the 5 issue of tender. For example, in Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d 6 113 (Nev.), as amended on denial of reh’g (Nov. 13, 2018), the Nevada Supreme Court 7 held “[a] valid tender of payment operates to discharge a lien or cure a default.” Id. at 117, 8 121. And it reaffirmed that “that the superpriority portion of an HOA lien includes only 9 charges for maintenance and nuisance abatement, and nine months of unpaid 10 assessments.” Id. at 117. More recently, the Nevada Supreme Court held that an offer to 11 pay the superpriority amount coupled with a rejection of that offer discharges the 12 superpriority portion of the HOA’s lien, even if no money changed hands. See Bank of 13 Am., N.A. v. Thomas Jessup, LLC Series VII, Case No. 73785, --- P.3d ---, 2019 WL 14 1087513, at *1 (Mar. 7, 2019). Even more recently, the Ninth Circuit weighed in to confirm 15 the Nevada Supreme Court had settled this issue—“the holder of the first deed of trust 16 can establish the superiority of its interest by showing that its tender satisfied the 17 superpriority portion of the HOA’s lien,” which “consists of nine months of unpaid HOA 18 dues and any unpaid charges for maintenance and nuisance abatement.” Bank of Am., 19 N.A. v. Arlington W. Twilight Homeowners Ass’n, Case No. 17-15796, --- F.3d ---, 2019 20 WL 1461317, at *2 (9th Cir. Apr. 3, 2019). 21 Here, Plaintiff has presented undisputed evidence that it tendered more than the 22 superpriority amount, so Plaintiff’s tender discharged the HOA’s superpriority lien, and 23 the DOT continues to encumber the Property. Specifically, it is undisputed that Miles 24 Bauer tendered the Check for $197.25 to ATC. (ECF No. 63-1 at 50-52.) While no party 25 has explained how Miles Bauer arrived at that amount, it is a larger amount than the sum 26 total of the assessments Borrowers owed (id. at 46 (stating they owed $158.36 in 27 assessments)), and line item charges that could be construed as maintenance and 28 5 1 nuisance abatement charges (id. (indicating that ‘Clerical’ charges totaled $30)). Thus, 2 Miles Bauer’s tender of the Check discharged the HOA’s superpriority lien. See U.S. Bank 3 Nat’l Ass’n v. Thunder Properties, Inc., Case No. 3:17-cv-00106-MMD-WGC, 2019 WL 4 469901, at *2 (D. Nev. Feb. 6, 2019) (finding that purchaser “failed to create a genuine 5 issue of material fact as to whether BANA paid the assessments that made up the HOA 6 lien” where it was undisputed that BANA paid an amount that equaled the maximum 7 possible amount of the homeowners’ association lien at issue in that case). The fact that 8 ATC rejected the Check is immaterial. See Thomas Jessup, 2019 WL 1087513, at *3-*4. 9 The Court further rejects LVEG’s argument (ECF No. 68 at 20) that the Miles 10 Affidavit does not sufficiently authenticate the exhibits Plaintiff offered to support its tender 11 argument, and LVEG’s related argument that attacks the reliability of the computerized 12 record Plaintiff offered to show that the HOA rejected Miles Bauer’s tender. See 13 Nationstar Mortg. LLC v. Augusta Belford & Ellingwood Homeowners Ass’n, Case No. 14 2:15-cv-01705-MMD-PAL, 2019 WL 1173341, at *4 (D. Nev. Mar. 12, 2019) (rejecting 15 similar arguments regarding an affidavit from Doug Miles); Bank of America, N.A., v. 16 Boulder Creek Homeowners Association, et al., Case No. 2:16-cv-00572-GMN-PAL, 17 2019 WL 1441603, at *4-*5 (D. Nev. Mar. 30, 2019) (same). 18 The Court therefore finds that Plaintiff has demonstrated entitlement to summary 19 judgment on its first claim for relief. In its Complaint, Plaintiff primarily requests a 20 declaration that its DOT survived the HOA Sale. (ECF No. 1 at 16.) Given that Plaintiff 21 has received the relief it requested, the Court dismisses Plaintiff’s remaining claims as 22 moot. 23 B. Lien Motion 24 In the Lien Motion, LVEG’s former counsel Aaron Dean seeks to recover the fees 25 he incurred litigating this case until he and LVEG parted ways. (ECF No. 57.) No party 26 filed a response to the Lien Motion. Dean filed a motion to withdraw concurrently with the 27 Lien Motion (ECF No. 58), which Magistrate Judge Peggy A. Leen granted (ECF No. 64). 28 6 1 LVEG is now represented by other counsel. (ECF No. 60.) Dean requested to withdraw 2 from representing LVEG, and LVEG presumably hired other counsel, “due to 3 irreconcilable differences, a breakdown of communication, and the failure and/or refusal 4 of LVEG to pay its outstanding invoices and amounts owed” to Dean. (ECF No. 57 at 3.) 5 Dean states that LVEG owed him $12,941.83 at the time he filed the Lien Motion. (Id.) He 6 also seeks an additional $900 for the three hours it took him to prepare the Lien Motion. 7 (Id. at 4.) 8 Dean’s Lien Motion is based on a Nevada law that gives an attorney a lien on his 9 or her client’s money or property when the client does not pay the attorney. See NRS § 10 18.015. “Nevada recognizes two kinds of attorney’s liens: (1) a ‘charging lien’ and (2) a 11 ‘retaining lien.’” Nationstar Mortg., LLC v. Desert Shores Cmty. Ass’n, Case No. 2:15-cv- 12 01776-KJD-CWH, 2017 WL 1788682, at *1 (D. Nev. Jan. 13, 2017), report and 13 recommendation adopted sub nom. Nationstar Mortg., LLC v. RAM LLC, Case No. 2:15- 14 cv-01776-KJD-CWH, 2017 WL 1752931 (D. Nev. May 4, 2017) (“Desert Shores”) (first 15 citing NRS § 18.015, then citing Argentena Consol. Min. Co. v. Jolley Urga Wirth 16 Woodbury & Standish, 216 P.3d 779, 782 (Nev. 2009)). Here, Dean appears to seek a 17 retaining lien because LVEG has not yet recovered any money or property in this case 18 (to which a ‘charging lien’ would attach), and Dean provided legal services to LVEG for 19 which LVEG has not paid him. See id. at *1-*2. “[A] retaining lien attaches to the client’s 20 file or other property left in the attorney’s possession until the court adjudicates the rights 21 of the attorney, client, or other parties.” Id. at *1 (citing NRS § 18.015(4)(b)). 22 Further, here, Dean has complied with the statutory requirement of giving notice 23 of the lien (ECF No. 56), and the Court has waited more than the statutorily-required five 24 days to adjudicate Dean’s Lien Motion. See NRS § 18.015(6). Thus, the Court must 25 address the related questions of whether the fees Dean seeks to recover from LVEG in 26 the form of a lien on LVEG’s file are reasonable, and whether his fee award may include 27 28 7 1 the costs associated with preparing the Lien Motion. See Desert Shores, 2017 WL 2 1788682, at *2. 3 A. Reasonable Fees and Hours Worked 4 As noted, Dean seeks $12,941.83. (ECF No. 57 at 3.) In determining whether this 5 amount is reasonable, the Court must consider: “(1) the qualities of the attorney; (2) the 6 character of the work to be done; (3) the work the attorney actually performed; and (4) 7 the result.” Desert Shores, 2017 WL 1788682, at *2 (citing Brunzell v. Golden Gate Nat. 8 Bank, 455 P.2d 31, 33 (Nev. 1969)). “An attorney’s withdrawal from a case does not justify 9 non-payment for reasonable hours actually worked on that case.” Id. (citation omitted). 10 Here, as in Desert Shores, Dean’s relationship with LVEG was governed by a 11 contract. (ECF No. 57-2 (the “Contract”).) In the Contract, LVEG agreed to pay Dean $300 12 an hour for his time spent on “Defense and/or prosecution of Quiet Title actions 13 associated with Superpriority Liens under NRS 116.3116 et seq. for one or more of 14 Client’s properties,” which logically includes this case. (Id. at 2, 3, 7.) Further, in the 15 Contract, LVEG also agreed to give Dean a retaining lien on its file, which authorizes 16 Dean to retain its file until LVEG pays in full for services previously rendered by Dean. 17 (Id. at 4.) The Contract also provides, as applicable here, that this Court has jurisdiction 18 to adjudicate the Lien Motion without Dean filing a separate action. (Id.) The Contract also 19 gives Dean the right to withdraw—as he did here—for cause, such cause including non- 20 payment of Dean’s fees. (Id.; see also id. at 3.) 21 Considered together, the reasonableness factors weigh in favor of finding Dean’s 22 requested retaining lien of $12,941.83 is reasonable. The fourth factor, the result, does 23 not weigh in Dean’s favor because he withdrew from the case before reaching a favorable 24 result for his client, and, as explained supra, the Court will grant Plaintiff summary 25 judgment on its quiet title claim. Thus, Dean’s former client is not on track to obtain a 26 favorable result. But regarding the first two factors, Dean represents that his rate is 27 reasonable and customary. (ECF No. 57 at 2.) Both the fact that LVEG signed the 28 8 1 Contract, and that LVEG did not oppose the Lien Motion, support Dean’s representation 2 and weigh in favor of the Court finding Dean’s fees are reasonable. Thus, the first two 3 factors weigh in Dean’s favor. The third factor—the work actually preformed—also weighs 4 in Dean’s favor because he provided the Court with copies of invoices that show what 5 Dean did in this case, and how long each task took him and his paralegal, with reasonable 6 specificity—and the time billed does not appear excessive to the Court. (ECF No. 57-5.) 7 In addition, the records Dean provided indeed include charges adding up to $12,941.83. 8 (Id.) In sum, the Court finds that Dean has sufficiently shown he is entitled to a retaining 9 lien on LVEG’s file in the amount of $12,941.83. B. Costs of Preparing Lien Motion 10 11 As also noted above, Dean seeks $900 for his time spent preparing the Lien 12 Motion. However, like in Desert Shores, neither caselaw nor the Contract support this 13 request. See Desert Shores, 2017 WL 1788682, at *3. Dean cites no law in support of his 14 request for his fees incurred in preparing the Lien Motion. (ECF No. 57 at 4.) Further, 15 while the Contract specifically provides that Dean may recover his costs incurred in 16 preparing a motion to withdraw as attorney as record, it is silent with respect to a motion 17 to adjudicate an attorney’s lien. The Contract’s silence on this point therefore suggests 18 the omission was deliberate, especially considering that Dean’s potential attorney’s lien 19 is otherwise discussed in detail. (ECF No. 57-2 at 2, 4.) Thus, the Court finds Dean’s 20 request for $900 to prepare the Lien Motion is unfounded, and the Court will not award 21 him a retaining lien reflecting this additional amount. 22 V. CONCLUSION 23 The Court notes that the parties made several arguments and cited to several 24 cases not discussed above. The Court has reviewed these arguments and cases and 25 determines that they do not warrant discussion as they do not affect the outcome of the 26 motions before the Court. 27 /// 28 9 1 It is therefore ordered that Plaintiff’s motion for summary judgment (ECF No. 63) 2 is granted as to Plaintiff’s first claim for relief. The Court declares that Plaintiff’s DOT 3 survived the HOA Sale and continues to encumber the Property. Plaintiff’s remaining 4 claims are dismissed as moot. 5 It is further ordered that Aaron Dean’s Lien Motion (ECF No. 57) is granted in part, 6 and denied in part. Dean’s request for a retaining lien on his LVEG file of $12,941.83 for 7 his services to LVEG, plus finance fees, is granted. Dean’s request for additional fees for 8 preparation of the Lien Motion is denied. 9 It is further ordered that the parties must file a joint status report with the Court 10 regarding the impact of this order on LVEG’s unjust enrichment counterclaim (ECF No. 11 19 at 23-25) within fourteen days. 12 13 14 The Clerk of Court is directed to enter judgment in Plaintiff’s favor on its first claim for relief in accordance with this order. DATED THIS 12th day of April 2019. 15 16 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10
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