Federal National Mortgage Association v. Vegas Property Services, Inc. et al, No. 2:2017cv01798 - Document 57 (D. Nev. 2018)
Court Description: ORDER Granting 51 Stipulation to Allow Vegas Property to Amend Answer and Counterclaim and to Extend Time Re: 49 Motion. Responses due by 5/11/2018. Signed by Magistrate Judge Peggy A. Leen on 5/3/2018. (Copies have been distributed pursuant to the NEF - ADR)
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Federal National Mortgage Association v. Vegas Property Services, Inc. et al Doc. 57 Case 2:17-cv-01798-APG-PAL Document 54 Filed 04/25/18 Page 1 of 3 1 2 3 4 5 6 7 JOHN HENRY WRIGHT, ESQ. Nevada Bar No. 6182 CHRISTOPHER B. PHILLIPS, ESQ. Nevada Bar No. 14600 THE WRIGHT LAW GROUP, P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Telephone: (702) 405-0001 Facsimile: (702) 405-8454 Email: john@wrightlawgroupnv.com chris@wrightlawgroupnv.com Attorneys for Defendant VEGAS PROPERTY SERVICES, INC. 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 10 11 FEDERAL NATIONAL MORTGAGE ASSOCIATION, 12 13 14 15 16 17 Case No. 2:17-cv-01798-APG-PAL Plaintiff, vs. VEGAS PROPERTY SERVICES, INC., a Nevada corporation; OPULENCE CONDOMINIUM ASSOCIATION, a Nevada non-profit corporation, Defendants. STIPULATION AND ORDER TO ALLOW DEFENDANT VEGAS PROPERTY SERVICES, INC. TO AMEND ANSWER AND COUNTERC L A I M A G A I N S T PL A I N T I FF, FEDERAL NATIONAL MORTGAGE ASSOCIATION AND STIPULATION AND ORDER TO AL L OW PL AI NT I FF FE DE RAL NATIONAL MORTGAGE ASSOCIATION ADDITIONAL TIME TO RESPOND TO VEGAS PROPERTY SERVICES, INC.’S REQUEST FOR DISCOVERY PURSUANT TO FRCP 56(d) AND VEGAS PROPERTY SERVICES, INC’S OPPOSITION TO FEDERAL NATIONAL MORTGAGE ASSOCIATION’S COUNTER-MOTION FOR SUMMARY JUDGMENT 18 19 20 21 22 23 24 25 26 27 28 Pursuant to LR 6-1, Plaintiff FEDERAL NATIONAL MORTGAGE ASSOCIATION and Defendant VEGAS PROPERTY SERVICES, INC, by and through their respective counsel of record, hereby agree and stipulate as follows: IT IS HEREBY AGREED AND STIPULATED that Defendant VEGAS PROPERTY SERVICES, LLC may amend second amended answer [ECF # 40] in order to add a counter-claim Page 1 of 3 Dockets.Justia.com Case 2:17-cv-01798-APG-PAL Document 54 Filed 04/25/18 Page 2 of 3 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 1 against Plaintiff, Federal National Mortgage Association. 2 Defendant’s current counsel was retained after Defendant’s original answer [ECF # 20] 3 was filed, and Defendant’s prior counsel did not assert any such counter-claim. For the convenience 4 of the parties and witnesses, and in order to maximize judicial economy and avoid duplicative 5 litigation, the parties agree to allow Defendant to amend its answer and assert said counter-claim 6 against Federal National Mortgage Association. This request is made in good faith, and not for the 7 purposes of delay. 8 Defendant’s proposed amended answer and counter-claim is attached hereto as Exhibit A. 9 IT IS FURTHER STIPULATED AND AGREED that Plaintiff Federal National Mortgage 10 Association shall have up to, and including, May 11, 2018 to file its response(s) to Vegas Property 11 Service, Inc.’s request for discovery pursuant to FRCP 56(d) [ECF # 49] and Vegas Property 12 Service, Inc.’s opposition to Federal National Mortgage Association’s Countermotion for Summary 13 Judgment [ECF #50]. This request is made in good faith, and not for the purposes of delay. 14 IT IS FURTHER STIPULATED AND AGREED that this stipulation shall have no 15 preclusive effect on either dispositive motion currently pending in this matter, namely: Vegas 16 Property Service, Inc’s Motion to Dismiss Federal National Mortgage Association’s First Amended 17 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Page 2 of 3 Case 2:17-cv-01798-APG-PAL Document 54 Filed 04/25/18 Page 3 of 3 1 Complaint [ECF # 36]; and Federal National Mortgage Association’s Countermotion for Summary 2 Judgment [ECF # 41]. 3 4 DATED this 19th day of April, 2018. DATED this 19th day of April, 2018. 5 THE WRIGHT LAW GROUP, P.C. WRIGHT, FINLAY & ZAK, LLP 6 7 8 9 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 10 11 /s/ John Henry Wright JOHN HENRY WRIGHT, ESQ. Nevada Bar No. 6182 CHRISTOPHER B. PHILLIPS, ESQ. Nevada Bar No. 14600 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Attorneys for Defendant VEGAS PROPERTY SERVICES, LLC /s/ Christina Miller DANA JONATHON NITZ, ESQ. Nevada Bar No. 0050 CHRISTINA V. MILLER, ESQ. Nevada Bar No. 12448 7785 W. Sahara Ave. Suite 200 Las Vegas, Nevada 89117 Attorneys for Plaintiffs, FEDERAL NATIONAL HOME LOAN MORTGAGE ASSOCIATION 12 13 14 ORDER IT IS SO ORDERED. 15 16 UNITED STATES MAGISTRATE JUDGE 17 DATED: 18 19 20 21 22 23 24 25 26 27 28 Page 3 of 3 May 3, 2018 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 1 of 14 1 2 3 4 5 6 7 JOHN HENRY WRIGHT, ESQ. Nevada Bar No. 6182 CHRISTOPHER B. PHILLIPS, ESQ. Nevada Bar No. 14600 THE WRIGHT LAW GROUP, P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Telephone: (702) 405-0001 Facsimile: (702) 405-8454 Email: john@wrightlawgroupnv.com chris@wrightlawgroupnv.com Attorneys for Defendant VEGAS PROPERTY SERVICES, INC. 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 10 11 12 13 14 15 16 17 18 Case No. 2:17-cv-01798-APG-PAL FEDERAL NATIONAL MORTGAGE ASSOCIATION, DEFENDANT VEGAS PROPERTY SERVICE, INC’S THIRD AMENDED ANSWER, CROSS-CLAIM, and COUNTER-CLAIM Plaintiff, vs. VEGAS PROPERTY SERVICES, INC., a Nevada corporation; OPULENCE CONDOMINIUM ASSOCIATION, a Nevada non-profit corporation, Defendants. ____________________________________ VEGAS PROPERTY SERVICES, INC., a Nevada corporation, 19 Cross-Claimant 20 21 vs. 22 GLADYS FUENTES, an Individual, 23 24 25 26 27 Cross-Defendant COMES NOW Defendant VEGAS PROPERTY SERVICES, INC., (“Vegas”) by and through its attorney of record, JOHN HENRY WRIGHT, ESQ., of THE WRIGHT LAW GROUP, P.C., and hereby submits its Third Amended Answer to Plaintiff FEDERAL NATIONAL MORTGAGE ASSOCIATION’S Complaint [ECF # 1] filed on June 29, 2017 as follows: 28 Page 1 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 2 of 14 1 2 3 VEGAS admits the allegations contained in paragraphs 9, 11, 57, 123, and 133 of the Complaint. 2. VEGAS denies the allegations contained in paragraphs 88, 89, 90, 99, 100, 101, 4 102, 103, 104, 116, 117, 118, 119, 125, 126, 127, 128, 134, 135, 136, 137, 143, 144, 145, 146, 148, 5 150, 151, 152, 153, 154, and 155 of the Complaint. 6 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 1. 3. VEGAS is without knowledge or information sufficient to form a belief as to the 7 truth of the allegations contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10, 12, 13, 15, 16, 17, 18, 19, 8 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 58, 59, 60, 61, 62, 9 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 91, 10 92, 93, 94, 95, 98, 107, 108, 109, 110, 111, 112, 113, 114, 115, 121, 122, 124, 130, 131, 132, 139, 11 140, 141, 142, and 149 of the Complaint. 12 4. In answering paragraph 14 of the complaint, Vegas admits that it is a domestic 13 business entity formed pursuant to and conducting business subject to the laws of the State of 14 Nevada and that a substantial part of the events or omissions giving rise to the claims occurred in 15 this District, but is without sufficient information or knowledge to form a belief as to the truth or 16 falsity of the remaining allegations contained therein and therefore denies said allegations. 17 5. In answering paragraph 96 of Plaintiff’s complaint, Vegas denies the allegation that 18 it “knew that Plaintiff would rely on the Mortgage Protection Clause contained in the recorded 19 CC&Rs which are of public record, and knew that Plaintiff, or its predecessors, agents, servicers, 20 or trustees, would not know that HOA was foreclosing on super-priority amounts because of the 21 failure of HOA and HOA trustee to provide such notice” and is without sufficient information or 22 knowledge to form a belief as to the truth or falsity of the remaining allegations contained therein 23 and therefore denies said allegations. 24 6. In answering paragraph 97 of Plaintiff’s complaint, Vegas denies the allegation that 25 “defendant’s knew that prospective bidders would be less likely to attend the HOA sale because 26 the public at large believed that Plaintiff was protected under the Mortgage Protection Clause in 27 the CC&Rs of public record, and that the public at large did not receive notice, constructive or 28 actual, that the HOA was foreclosing on a super-priority portion of its lien because HOA and HOA Page 2 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 3 of 14 1 Trustee improperly failed to provide such notice” and is without sufficient information or 2 knowledge to form a belief as to the truth or falsity of the remaining allegations contained therein 3 and therefore denies the remaining allegations. 4 5 In answering paragraphs 106, 120, 129, 138, and 147 of the Complaint, VEGAS reasserts each and every previous response to each repeated allegation. 6 8. 7 herein is denied. 8 9. 9 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 7. Each and every other allegation in the Complaint not specifically admitted or denied Vegas offers no responses to paragraphs 41-56 and 107 as Plaintiff’s complaint omits paragraphs 41-56 and 105 without explanation. 10 AFFIRMATIVE DEFENSES 11 FIRST DEFENSE 12 13 Plaintiff’s complaint, in whole or in part, fails to state a claim against Vegas for which relief can be granted. 14 SECOND DEFENSE 15 16 At all material times, Vegas acted in good faith and exercised its lawful rights in dealing with Plaintiff. 17 THIRD DEFENSE 18 19 Plaintiff’s claims are barred by its own failure to deal in good faith and deal fairly with Vegas. 20 21 FOURTH DEFENSE Plaintiff is estopped from bringing this action. 22 23 24 25 26 27 28 FIFTH DEFENSE Plaintiff has failed to satisfy conditions precedent to further performance of any legal obligations of Vegas. SIXTH DEFENSE Plaintiff has failed to comply with appropriate state and federal laws. SEVENTH DEFENSE Plaintiff has failed to exhaust all administrative and contractual remedies before Page 3 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 4 of 14 1 commencing litigation. 2 EIGHTH DEFENSE 3 Plaintiff has failed to mitigate its damages, if any. 4 NINTH DEFENSE 5 6 Plaintiff has failed to join all parties necessary for just adjudication of the claims at issue in this action. 7 TENTH DEFENSE 8 Plaintiff’s claims are barred by reason of illegality. 9 ELEVENTH DEFENSE THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 10 11 Plaintiff’s damages, if any were caused by economic and other conditions that were beyond the control of Vegas. 12 TWELFTH DEFENSE 13 14 Plaintiff’s claims are barred in that it acquiesced in or consented to all actions taken by Vegas. 15 16 THIRTEENTH DEFENSE Any claim asserted by Plaintiff is barred by laches of Plaintiff in pursuing such claim. 17 18 19 FOURTEENTH DEFENSE Plaintiff has not and will not sustain any injury or damages as a result of Vegas’s alleged acts and/or omissions. 20 FIFTEENTH DEFENSE 21 Vegas alleges that under the factual circumstances set forth in Plaintiff’s complaint, there 22 was a modification of the provisions, duties, and obligations therein, and that modification is an 23 absolute defense to any recovery of behalf of the Plaintiff against Vegas. 24 25 SIXTEENTH DEFENSE Plaintiff failed to disclose necessary information and Vegas relied on this omission. 26 27 28 SEVENTEENTH DEFENSE Plaintiff’s alleged damages, if any, were directly caused by the negligence of Plaintiff or its agents. Page 4 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 5 of 14 1 2 EIGHTEENTH DEFENSE Plaintiff failed to comply with a pre-existing duty. 3 4 NINETEENTH DEFENSE Vegas was authorized and privileged to do all acts alleged in Plaintiff’s complaint. 5 6 7 TWENTIETH DEFENSE Plaintiff is barred from maintaining this action by virtue of its own unclean hands and inequitable conduct. 8 9 TWENTY-FIRST DEFENSE Plaintiff claims are barred by its own failure to deal fairly with Vegas. THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 10 11 12 TWENTY-SECOND DEFENSE Plaintiff would by unjustly enriched if it was allowed to recover on its demands, or any portion, thereof. 13 TWENTY-THIRD DEFENSE 14 Vegas is informed and believes, and thereon alleges, that Plaintiff’s claims are barred, in 15 whole or in part, or its damages, if any, should be reduced because Plaintiff violated certain state 16 and federal laws. 17 18 19 TWENTY-FOURTH DEFENSE By virtue of the acts, deed, conduct, and/or failure or omissions to act under circumstances, Plaintiff has waived its rights, if any existed, to assert the claims against Vegas. 20 21 TWENTY-FIFTH DEFENSE Plaintiff failed to comply with normal and accepted business practices. 22 23 24 25 26 27 TWENTY-SIXTH DEFENSE Plaintiff has failed to demonstrate a likelihood of success on the merits and, as such, is not entitled to injunctive relief. TWENTY-SEVENTH DEFENSE Plaintiff has failed to demonstrate that it has been irreparably harmed by Defendant’s alleged conduct, and as such, is not entitled to injunctive relief. 28 Page 5 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 6 of 14 1 2 TWENTY-EIGHTH DEFENSE Vegas was a bona fide purchaser of the property at issue. 3 TWENTY-NINTH DEFENSE 4 Vegas reserves the right to add or modify the affirmative defenses listed herein. 5 THIRTIETH DEFENSE 6 7 Defendant hereby incorporates those the affirmative defenses enumerated in Rule 8 of the Nevada Rules of Civil Procedure. 8 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 9 PRAYER FOR RELIEF Defendant Vegas requests judgment against Plaintiff as follows: 10 1. That Plaintiff take nothing for its Complaint. 11 2. For a declaration and determination that VEGAS PROPERTY SERVICES, INC 12 is the rightful owner of title to the Property, and that Plaintiff be declared to have 13 no right, title or interest in the Property. 14 3. For an award of attorney’s fees and costs of suit; and 15 4. For any further relief that the Court may deem just and proper. 16 Dated this 19th day of April, 2018. 17 THE WRIGHT LAW GROUP, PC 18 19 20 21 22 23 24 /s/John Henry Wright JOHN HENRY WRIGHT, ESQ. Nevada Bar No. 6182 CHRISTOPHER B. PHILLIPS, ESQ. Nevada Bar No. 14600 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Telephone: (702) 405-0001 Facsimile: (702) 405-8454 Attorneys for Defendant VEGAS PROPERTY SERVICES, INC. 25 26 27 28 Page 6 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 7 of 14 1 VEGAS PROPERTY SERVICES, INC. CROSS-CLAIM AGAINST GLADYS FUENTES 2 COMES NOW, Cross-claimant VEGAS PROPERTY SERVICES, INC., (“Vegas”) by and 3 through its counsel of record, JOHN HENRY WRIGHT, ESQ., of the WRIGHT LAW GROUP, 4 P.C., and for its CROSS-CLAIM, does hereby allege and aver as follows: 5 1. Vegas at all times relevant herein was and is a Nevada corporation in good 6 standing. 7 2. Upon information and belief, Cross-Defendant GLADYS FUENTES (“Fuentes”)is 8 an individual person, and at all times relevant herein was a citizen and resident of the State of 9 Nevada and was the prior owner of 5415 W. Harmon Ave., No. 2114, Las Vegas, Nevada 89103; THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 10 APN 163-24-714-098 (the “Property”) who may claim an interest through a Grant, Bargain, Sale 11 Deed recorded against the property on February 28, 2001 as Instrument No. 20010228-0002474. 12 3. The Property was acquired by Vegas on March 26, 2015, by successfully bidding 13 on the Property at a publicly-held foreclosure auction in accordance with NRS 116.3116, et. seq. 14 (“Association foreclosure sale”) and by paying the sum of $40,300.00. 15 4. On or about April 10, 2015, the resulting trustee’s deed upon sale was recorded in 16 the Official Records of the Clark County Recorder as Instrument Number 20150410-0000347 17 (“Foreclosure Deed”). 18 5. Since the Association foreclosure sale, Counter-claimant has expended additional 19 funds and resources in relation to the Property. 20 6. Upon information and belief, the foreclosure sale was conducted by Assessment 21 Management Services, as agent for the Opulence Condominium Association (the “Association”) 22 pursuant to the powers conferred by the Nevada Revised Statutes 116.3116, 116.31162-116.31168, 23 the Association’s governing documents (CC&R’s) recorded as Instrument No. 941004.01252 and 24 a Notice of Default and Election to Sell Under Homeowners Association Lien recorded on April 25 7, 2014 as Instrument No. 20140407-0000230. 26 7. As recited in the Foreclosure Deed, the Association foreclosure sale complied with 27 all requirements of law, including but not limited to, recording and mailing of copies of Notice of 28 Delinquent Assessments and Notice of Default, and the recording, posting and publication of the Page 7 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 8 of 14 1 2 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 3 Notice of Sale as required by Nevada Law. 8. Pursuant to NRS 116.3116(2), the entire Association Lien is prior to all other liens and encumbrances of unit except: 4 (a) Liens and encumbrances recorded before the recordation of the declaration and, in a 5 cooperative, liens and encumbrances which the association creates, assumes or takes 6 subject to; 7 (b) A first security interest on the unit recorded before the date on which the assessment 8 sought to be enforced became delinquent or, in a cooperative, the first security interest 9 encumbering only the unit’s owner’s interest and perfected before the date on which the 10 assessment sought to be enforced became delinquent; and 11 (c) Liens for real estate taxes and other governmental assessments or charges against the 12 unit or cooperative. 13 9. NRS 116.3116(2) further provides that a portion of the Association Lien, up to a 14 maximum of nine months, has priority over even a first security interest [first deed of trust] in the 15 Property: 16 [the Association Lien] is also prior to all security interests described in paragraph (b) to the 17 extent of any charges incurred by the association on a unit pursuant to NRS 116.310312 18 and to the extent of the assessments for common expenses based on the periodic budget 19 adopted by the association pursuant to NRS 116.3115 which would have become due in 20 the absence of acceleration during the 9 months immediately preceding institution of an 21 action to enforce the lien[.] 22 10. 23 24 25 26 27 28 Upon information and belief, the Association took the necessary action to trigger the super-priority portion of the Association Lien. 11. Upon information and belief, no party still claiming an interest in the Property recorded a lien or encumbrance prior to the declaration creating the Association. 12. Upon information and belief, Vegas’s bid on the Property was in excess of the amount necessary to satisfy the costs of sale and the super-priority portion of the Association Lien. 13. Upon information and belief, the Association or its agent, distributed or should have Page 8 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 9 of 14 1 2 3 4 5 6 14. Upon information and belief, Cross-defendant had actual or constructive notice of the requirement to pay assessments to the Association and of the Association Lien. 15. Upon information and belief, Cross-defendant had actual or constructive notice of the Association’s foreclosure proceedings. 16. Upon information and belief, prior to the Association foreclosure sale, no individual 7 or entity paid the full amount of delinquent assessments described in the Notice of Default or 8 record or otherwise perfect any attempted partial tender thereof to provide any actual or 9 constructive notice of the lien dispute so as to cause or create a duty of inquiry as to Vegas. 10 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 distributed the excess funds to lien holders in order of priority pursuant to NRS 116.3114©. 17. Upon information and belief, prior to the Association foreclosure sale, no notice 11 was provided that any individual or entity tendered or paid the entirety of the super priority portion 12 of the Association Lien or as required under NRS §116.3116(2) representing 9 months of 13 assessments for common expenses based on the periodic budget adopted by the association which 14 would have become due in the absence of acceleration for the relevant time period. 15 18. Pursuant to NRS 116.31166, the foreclosure sale vested title in Vegas “without 16 equity or right of redemption,” and the Foreclosure Deed is conclusive against the Property’s 17 “former owner, his or her heirs and assigns, and all other persons.” 18 19 19. by the foreclosure of the Association Lien. 20 FIRST CLAIM FOR RELIEF (Declaratory Relief/Quiet Title Pursuant to NRS 30.010, et. seq., NRS 40.10 & NRS 116.3116) 21 22 23 24 Cross-defendant Feuntes’s ownership interests in the Property were extinguished 20. Vegas repeats and realleges the allegations of paragraphs 1-19 as though fully set forth herein and incorporates the same by reference. 21. Pursuant to NRS 30.010, et. seq. and NRS 40.010, this Court has the power and 25 authority to declare Vegas’s rights and interests in the Property and to resolve the Cross- 26 defendant’s adverse claims in the Property. 27 28 22. Vegas is entitled to a declaratory judgment from this Court finding that: (1) Vegas is the title owner of the Property; (2) the Foreclosure Deed is valid and enforceable; (3) the Page 9 of 14 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 10 of 14 1 Association foreclosure sale extinguished Cross-defendant’s ownership and security interests in 2 the Property; and (4) Vegas’s rights and interest in the Property are superior to any adverse interest 3 claimed by Cross-defendant. 4 23. 5 WHEREFORE, Cross-claimant prays this Honorable Court will award the following 6 RELIEF: 7 1. Vegas seeks an order from the Court quieting title to the Property in favor of Vegas. For an Order Quieting title in favor of Vegas and for a declaration and 8 determination that VEGAS PROPERTY SERVICES, INC is the rightful owner of title to the 9 Property, and that Cross-defendant be declared to have no right, title or interest in the Property. 10 2. For general and special damages in excess of $10,000.00 11 3. For an award of attorney’s fees and costs of suit; and 12 4. For any further relief that the Court may deem just and proper. 13 Dated this 19th day of April, 2018. 14 15 THE WRIGHT LAW GROUP, PC 16 /s/John Henry Wright 17 JOHN HENRY WRIGHT, ESQ. Nevada Bar No. 6182 CHRISTOPHER B. PHILLIPS, ESQ. Nevada Bar No. 14600 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Attorneys for Defendant/Cross-claimant VEGAS PROPERTY SERVICES, INC. 18 19 20 21 22 23 VEGAS PROPERTY SERVICES, INC. COUNTERCLAIM AGAINST PLAINTIFF FEDERAL NATIONAL MORTGAGE ASSOCIATION 24 COMES NOW, Counter-claimant VEGAS PROPERTY SERVICES, INC., by and through 25 its counsel of record, JOHN HENRY WRIGHT, ESQ., of the WRIGHT LAW GROUP, P.C., and 26 for its Counterclaim, does hereby allege and aver as follows: 27 1. VEGAS PROPERTY SERVICES, INC, (hereinafter “VEGAS”) at all times 28 relevant herein was and is a Nevada corporation in good standing. Page 10 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 11 of 14 1 Upon information and belief, Counterclaim Defendant FEDERAL NATIONAL 2 MORTGAGE ASSOCIATION (“Fannie Mae”), is and/or was a government-sponsored enterprise 3 existing under the laws of the United States with its primary offices located in Washington, D.C. 4 Fannie Mae presently claims some interest in 5415 W. Harmon Ave., No. 2114, Las Vegas, 5 Nevada 89103; APN 163-24-714-098 (the “Property”) through a deed of trust securing a loan 6 originated by Nevada Federal Credit Union on or around April 5, 2004, recorded at instrument No. 7 20040413-0002176 with the Clark County Recorder, State of Nevada. The Deed of Trust was 8 subsequently assigned to Fannie Mae in 2012 by an assignment of Deed of Trust recorded at 9 20120607-0000634 with the Clark County Recorder’s Office. 10 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 2. 3. The Property was acquired by Vegas on March 26, 2015, by successfully bidding 11 on the Property at a publicly-held foreclosure auction in accordance with NRS 116.3116, et. seq. 12 (“Association foreclosure sale”) and by paying the sum of $40,300.00. 13 4. On or about April 10, 2015, the resulting trustee’s deed upon sale was recorded in 14 the Official Records of the Clark County Recorder as Instrument Number 20150410-0000347 15 (“Foreclosure Deed”). 16 17 18 5. Since the Association foreclosure sale, Counter-claimant has expended additional funds and resources in relation to the Property. 6. Upon information and belief, the foreclosure sale was conducted by Assessment 19 Management Services, as agent for the Opulence Condominium Association (the “Association”) 20 pursuant to the powers conferred by the Nevada Revised Statutes 116.3116, 116.31162-116.31168, 21 the Association’s governing documents (CC&R’s) recorded as Instrument No. 941004.01252 and 22 a Notice of Default and Election to Sell Under Homeowners Association Lien recorded on April 23 7, 2014 as Instrument No. 20140407-0000230. 24 7. As recited in the Foreclosure Deed, the Association foreclosure sale complied with 25 all requirements of law, including but not limited to, recording and mailing of copies of Notice of 26 Delinquent Assessments and Notice of Default, and the recording, posting and publication of the 27 Notice of Sale as required by Nevada Law. 28 8. Pursuant to NRS 116.3116(2), the entire Association Lien is prior to all other liens Page 11 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 12 of 14 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 1 and encumbrances of unit except: 2 (a) Liens and encumbrances recorded before the recordation of the declaration and, in a 3 cooperative, liens and encumbrances which the association creates, assumes or takes 4 subject to; 5 (b) A first security interest on the unit recorded before the date on which the assessment 6 sought to be enforced became delinquent or, in a cooperative, the first security interest 7 encumbering only the unit’s owner’s interest and perfected before the date on which the 8 assessment sought to be enforced became delinquent; and 9 (c) Liens for real estate taxes and other governmental assessments or charges against the 10 unit or cooperative. 11 9. NRS 116.3116(2) further provides that a portion of the Association Lien, up to a 12 maximum of nine months, has priority over even a first security interest [first deed of trust] in the 13 Property: 14 [the Association Lien] is also prior to all security interests described in paragraph (b) to the 15 extent of any charges incurred by the association on a unit pursuant to NRS 116.310312 16 and to the extent of the assessments for common expenses based on the periodic budget 17 adopted by the association pursuant to NRS 116.3115 which would have become due in 18 the absence of acceleration during the 9 months immediately preceding institution of an 19 action to enforce the lien[.] 20 10. 21 22 23 24 25 26 27 28 Upon information and belief, the Association took the necessary action to trigger the super-priority portion of the Association Lien. 11. Upon information and belief, no party still claiming an interest in the Property recorded a lien or encumbrance prior to the declaration creating the Association. 12. Upon information and belief, Vegas’s bid on the Property was in excess of the amount necessary to satisfy the costs of sale and the super-priority portion of the Association Lien. 13. Upon information and belief, the Association or its agent, distributed or should have distributed the excess funds to lien holders in order of priority pursuant to NRS 116.3114(c). 14. Upon information and belief, Counter-defendant had actual or constructive notice Page 12 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 13 of 14 1 2 3 4 15. Upon information and belief, Counter-defendant had actual or constructive notice of the Association’s foreclosure proceedings. 16. Upon information and belief, prior to the Association foreclosure sale, no individual 5 or entity paid the full amount of delinquent assessments described in the Notice of Default or 6 record or otherwise perfect any attempted partial tender thereof to provide any actual or 7 constructive notice of the lien dispute so as to cause or create a duty of inquiry as to Vegas. 8 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 of the requirement to pay assessments to the Association and of the Association Lien. 17. Upon information and belief, prior to the Association foreclosure sale, no notice 9 was provided that any individual or entity tendered or paid the entirety of the super priority portion 10 of the Association Lien or as required under NRS §116.3116(2) representing 9 months of 11 assessments for common expenses based on the periodic budget adopted by the association which 12 would have become due in the absence of acceleration for the relevant time period. 13 18. Pursuant to NRS 116.31166, the foreclosure sale vested title in Vegas “without 14 equity or right of redemption,” and the Foreclosure Deed is conclusive against the Property’s 15 “former owner, his or her heirs and assigns, and all other persons.” 16 17 19. foreclosure of the Association Lien. 18 FIRST CLAIM FOR RELIEF (Declaratory Relief/Quiet Title Pursuant to NRS 30.010, et. seq., NRS 40.10 & NRS 116.3116) 19 20 21 22 Counter-defendant’s claimed interests in the Property were extinguished by the 20. Vegas repeats and realleges the allegations of paragraphs 1-19 as though fully set forth herein and incorporates the same by reference. 21. Pursuant to NRS 30.010, et. seq. and NRS 40.010, this Court has the power and 23 authority to declare Vegas’s rights and interests in the Property and to resolve the counter- 24 defendant’s adverse claims in the Property. 25 22. Vegas is entitled to a declaratory judgment from this Court finding that: (1) Vegas 26 is the title owner of the Property; (2) the Foreclosure Deed is valid and enforceable; (3) the 27 Association foreclosure sale extinguished Counter-defendant’s ownership and security interests 28 in the Property; and (4) Vegas’s rights and interest in the Property are superior to any adverse Page 13 of 14 Case 2:17-cv-01798-APG-PAL Document 54-1 Filed 04/25/18 Page 14 of 14 THE WRIGHT LAW GROUP P.C. 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Tel: (702) 405-0001 Fax: (702) 405-8454 1 interest claimed by counter-defendant. 2 23. 3 WHEREFORE, Counter-claimant prays this Honorable Court will award the following 4 RELIEF: 5 1. Vegas seeks an order from the Court quieting title to the Property in favor of Vegas. For an Order Quieting title in favor of Vegas and for a declaration and 6 determination that VEGAS PROPERTY SERVICES, INC is the rightful owner of 7 title to the Property, and that Cross-defendant be declared to have no right, title or 8 interest in the Property. 9 2. For general and special damages in excess of $10,000.00 10 3. For an award of attorney’s fees and costs of suit; and 11 4. For any further relief that the Court may deem just and proper. 12 Dated this 19th day of April, 2018. 13 14 15 16 17 18 19 THE WRIGHT LAW GROUP, PC /s/John Henry Wright JOHN HENRY WRIGHT, ESQ. Nevada Bar No. 6182 CHRISTOPHER B. PHILLIPS, ESQ. Nevada Bar No. 14600 2340 Paseo Del Prado, Suite D-305 Las Vegas, Nevada 89102 Attorneys for Defendant/Cross-claimant/CounterClaimant, VEGAS PROPERTY SERVICES, INC. 20 21 22 23 24 25 26 27 28 Page 14 of 14
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