Wells Fargo Bank, N.A. v. SFR Investments Pool 1, LLC et al, No. 2:2015cv00577 - Document 38 (D. Nev. 2016)
Court Description: ORDER Granting Plaintiff's 32 Motion for Leave to File First Amended Answer. Wells Fargo shall separately file the Amended Answer (which is attached hereto as Exhibit A) as a separate docket entry forthwith. Signed by Magistrate Judge Peggy A. Leen on 02/05/2016. (Copies have been distributed pursuant to the NEF - NEV)
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Wells Fargo Bank, N.A. v. SFR Investments Pool 1, LLC et al Doc. 38 Case 2:15-cv-00577-APG-PAL Document 32 Filed 11/16/15 Page 1 of 5 1 2 3 4 5 6 7 8 9 Jeffrey Willis, Esq. Nevada Bar No. 4797 Amy F. Sorenson, Esq. Nevada Bar No. 12495 Wayne Klomp, Esq. Nevada Bar No. 10109 SNELL & WILMER L.L.P. 50 West Liberty St., Suite 510 Reno, Nevada 89501-1961 Telephone: (775) 785-5440 Facsimile: (775) 785-5441 Email: jwillis@swlaw.com asorenson@swlaw.com wklomp@swlaw.com Attorneys for Plaintiff and Counter Defendant Wells Fargo Bank, N.A. 10 LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 Snell & Wilm er L.L.P. 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 WELLS FARGO BANK, N.A.; Plaintiff, 15 16 17 18 19 vs. SFR INVESTMENTS POOL 1, LLC, a Nevada limited liability company; TOWN CENTER VILLAGE COMMUNITY ASSOCIATION, a Nevada non-profit corporation; ALESSI & KOENIG, LLC, a Nevada limited liability company; 20 21 22 WELLS FARGO BANK, N.A.’S MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER TO SFR INVESTMENTS POOL 1, LLC’S COUNTERCLAIM Defendants. SFR INVESTMENTS POOL 1, LLC, a Nevada limited-liability company, Counter-Claimant, 23 24 Case No.: 2:15-cv-00577-APG-PAL vs. 25 WELLS FARGO BANK, N.A., a national association, 26 Counter-Defendant. 27 28 -122877398 Dockets.Justia.com Case 2:15-cv-00577-APG-PAL Document 32 Filed 11/16/15 Page 2 of 5 1 2 TOWN CENTER VILLAGE COMMUNITY ASSOCIATION, a Nevada non-profit corporation, 3 Cross-Claimant, 4 vs. 5 ALESSI & KOENIG, LLC, a Nevada limited-liability company, 6 Cross-Defendant. 7 8 MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER Fargo Bank, N.A. (“Wells Fargo”), by and through undersigned counsel, hereby moves the Court 11 LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 Pursuant to Rule 15 of the Federal Rules of Civil Procedure, Counter-Defendant, Wells 10 Snell & Wilm er L.L.P. 9 for leave to amend Wells Fargo’s answer (“Answer”) to Counter-Claimant SFR Investments Pool 12 1, LLC’s Counterclaim (“Counterclaim”) to assert the affirmative defense of preemption pursuant 13 to the Housing and Economic Recovery Act of 2008 (“HERA”). A proposed First Amended 14 Answer is attached hereto as Exhibit A. In support of this motion, Wells Fargo submits the 15 following memorandum of points and authorities. 16 MEMORANDUM OF POINTS AND AUTHORITIES 17 I. 18 Wells Fargo seeks leave to amend its answer to the Counterclaim to add the following 19 affirmative defense: Plaintiff's claim of free and clear title to the Property is barred by 12 U.S.C. 20 § 4617(j)(3), which precludes an HOA sale from extinguishing the Deed of Trust on the Property 21 and preempts any state law to the contrary. This Court should grant Wells Fargo’s motion 22 because the motion is brought in good faith and amending the Answer will not prejudice the 23 Counter-Claimant, SFR Investments Pool 1, LLC (“SFR”). INTRODUCTION 24 II. 25 Wells Fargo initiated this litigation seeking declaratory relief that a foreclosure sale 26 conducted by the Town Center Village Community Association (“HOA”) did not extinguish the 27 deed of trust recorded against residential property located in Clark County, Nevada. Complaint 28 (Dkt. #1). Before any party responded, Wells Fargo filed its First Amended Complaint pursuant BACKGROUND -222877398 Case 2:15-cv-00577-APG-PAL Document 32 Filed 11/16/15 Page 3 of 5 1 to FRCP 15. (Dkt. #12). SFR filed an answer and counterclaim alleging that it purchased the 2 subject property at the HOA foreclosure sale and, through its counterclaim, seeks declaratory 3 relief that it took title to the subject property free and clear of the deed of trust. (Dkt. #17). Wells 4 Fargo filed an answer to SFR’s counterclaim and asserted affirmative defenses. (Dkt. #21). 5 Wells Fargo now seeks to assert an additional affirmative defense related to federal preemption of 6 the statute allowing for the HOA foreclosure sale. Rule 15(a) of the Federal Rules of Civil Procedure provides that courts considering 9 motions for leave to amend pleadings “freely give leave when justice so requires.” “[T]his 10 mandate is to be heeded.” See Foman v. Davis, 371 U.S. 178, 182 (1962). “In the absence of any 11 LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 III. 8 Snell & Wilm er L.L.P. 7 apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the 12 movant . . .—the leave sought should, as the rules require, be ‘freely given.’” Id. ARGUMENT 13 Leave to amend is left to the discretion of the trial court which “must be guided by the 14 underlying purpose of Rule 15 to facilitate a decision on the merits, rather than on the pleadings 15 or technicalities.” U.S. v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). Thus, the policy favoring 16 leave to amend is to be applied with “extreme liberality.” Id. Where a party opposes a motion for 17 leave to amend based on prejudice caused by the amendment, that party bears the burden of 18 showing prejudice. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). 19 Wells Fargo seeks to amend its Answer to assert the affirmative defense of preemption 20 that was not raised in the original answer to the Counterclaim, but that Wells Fargo now deems 21 necessary to defend against the counterclaim. 22 Wells Fargo has not exhibited undue delay, bad faith, or dilatory motive in failing to 23 previously amend its Answer. The deadline to file motions for leave to amend pleadings is 24 November 16, 2015. See Order at 1:25 (Dkt. #30). Because Wells Fargo has filed its motion 25 prior to expiration of the court-ordered deadline for motions seeking leave to amend pleadings, 26 the motion is timely. 27 depositions, and therefore no previously conducted discovery would need to be repeated. 28 Moreover, the Parties have not yet engaged in written discovery or Additionally, the amended answer would not be futile. An amendment “is futile only if no -322877398 Case 2:15-cv-00577-APG-PAL Document 32 Filed 11/16/15 Page 4 of 5 1 set of facts can be proved under the amendment to the pleadings that would constitute a valid and 2 sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). 3 Thus, the proper standard to determine whether an amendment is futile is the FRCP 12(b)(6) 4 standard for failure to state a claim upon which relief can be granted. Id. Here, Wells Fargo’s 5 affirmative defense is not insufficient. Rather, Wells Fargo is asserting a colorable claim with 6 sufficient facts for Wells Fargo to show that the affirmative defense applies to bar SFR’s 7 counterclaim. For the reasons stated above, Wells Fargo requests leave to file the Amended Answer 10 attached as Exhibit A. SFR is not prejudiced by this request and there has been no undue delay or 11 LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 IV. 9 Snell & Wilm er L.L.P. 8 dilatory motive on the part of Wells Fargo. CONCLUSION 12 13 Dated: November 16, 2015 SNELL & WILMER L.L.P. 14 By: 15 16 17 18 19 /s/ Wayne Klomp Jeffrey Willis (NV Bar No. 4797) Amy F. Sorenson (NV Bar No. 12495) Wayne Klomp (NV Bar No. 10109) 50 West Liberty Street, Suite 510 Reno, Nevada 89501-1961 Telephone: (775) 785-5440 Facsimile: (775) 785-5441 Attorneys for Plaintiff and Counter Defendant Wells Fargo Bank, N.A. 20 21 22 No opposition having been filed, 23 24 25 26 IT IS ORDERED that the Motion for Leave to File First Amended Answer (Dkt. #32) is GRANTED. Wells Fargo shall separately file the Amended Answer (which is attached hereto as Exhibit A) as a separate docket entry forthwith. Dated this 5th day of February, 2016. _________________________ _________________________ __ _____ __ _ _ Peggy A Leen Peggy A. Leen gg g L United States Magistrate Judge 27 28 -422877398 Case 2:15-cv-00577-APG-PAL Document 32 Filed 11/16/15 Page 5 of 5 CERTIFICATE OF SERVICE 1 I hereby certify that on November 16, 2015, I electronically filed the foregoing with the 2 3 4 5 6 7 8 9 Clerk of Court for the U.S. District Court, District of Nevada by using the Court’s CM/ECF system. Participants in the case as follows who have appeared and are registered CM/ECF users will be served by the CM/ECF system: Diana S. Cline, Esq. Howard Kim & Associates 1055 Whitney Ranch Drive, Suite 110 Henderson, NV 89014 diana@hkimlaw.com Elizabeth B Lowell, Esq. Pengilly Robbins 1995 Village Center Cir., Ste. 190 Las Vegas, NV 89134-0562 elowell@pengillylawfirm.com Attorneys for Town Center Village Community Association Attorneys for SFR Investments Pool 1, LLC 10 LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 Snell & Wilm er L.L.P. 11 12 13 Steven T. Loizzi, Jr., Esq. Alessi & Koenig, LLC 9500 W. Flamingo Road, Suite 205 Las Vegas, NV 89147 steve@alessikoenig.com Attorneys for Alessi & Koenig, LLC 14 15 DATED: November 16, 2015. 16 17 /s/ Lara J. Taylor An Employee of Snell & Wilmer L.L.P. 18 19 20 21 22 23 24 25 26 27 28 -522877398 Case 2:15-cv-00577-APG-PAL Document 32-1 Filed 11/16/15 Page 1 of 10 EXHIBIT A EXHIBIT A Case 2:15-cv-00577-APG-PAL Document 32-1 Filed 11/16/15 Page 2 of 10 1 2 3 4 5 6 7 8 9 Jeffrey Willis, Esq. Nevada Bar No. 4797 Amy F. Sorenson, Esq. Nevada Bar No. 12495 Wayne Klomp, Esq. Nevada Bar No. 10109 SNELL & WILMER L.L.P. 50 West Liberty St., Suite 510 Reno, Nevada 89501-1961 Telephone: (775) 785-5440 Facsimile: (775) 785-5441 Email: jwillis@swlaw.com asorenson@swlaw.com wklomp@swlaw.com Attorneys for Plaintiff and Counter Defendant Wells Fargo Bank, N.A. 10 LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 Snell & Wilm er L.L.P. 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 WELLS FARGO BANK, N.A.; Plaintiff, 15 16 17 18 19 Case No.: 2:15-cv-00577-APG-PAL vs. SFR INVESTMENTS POOL 1, LLC, a Nevada limited liability company; TOWN CENTER VILLAGE COMMUNITY ASSOCIATION, a Nevada non-profit corporation; ALESSI & KOENIG, LLC, a Nevada limited liability company; 20 Defendants. 21 22 SFR INVESTMENTS POOL 1, LLC, a Nevada limited-liability company, 23 Counter-Claimant, 24 vs. 25 WELLS FARGO BANK, N.A., a national association, 26 Counter-Defendant. 27 28 -122877418 WELLS FARGO BANK, N.A.’S FIRST AMENDED ANSWER TO SFR INVESTMENTS POOL 1, LLC’S COUNTERCLAIM Case 2:15-cv-00577-APG-PAL Document 32-1 Filed 11/16/15 Page 3 of 10 1 2 TOWN CENTER VILLAGE COMMUNITY ASSOCIATION, a Nevada non-profit corporation, 3 Cross-Claimant, 4 vs. 5 ALESSI & KOENIG, LLC, a Nevada limited-liability company, 6 Cross-Defendant. 7 8 ANSWER TO COUNTERCLAIM through its counsel, the law firm of Snell & Wilmer L.L.P, hereby submits its Answer to SFR 11 LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 Counter Defendant, Wells Fargo Bank, N.A. (“Wells Fargo” or “Counter Defendant”), 10 Snell & Wilm er L.L.P. 9 Investments Pool 1, LLC’s Counterclaim as follows: 12 PARTIES 13 1. Wells Fargo admits that SFR is a Nevada limited-liability Company with its 14 principal place of business in Clark County, Nevada. Wells Fargo denies the remaining 15 allegations in paragraph 1. 16 17 2. record under the deed of trust. 18 GENERAL ALLEGATIONS 19 20 Wells Fargo admits that it claims an interest in the Property as beneficiary of 3. Wells Fargo lacks sufficient knowledge or information to respond, and therefore denies the allegations in paragraph 3. 21 4. Wells Fargo admits the allegations in paragraph 4. 22 5. Wells Fargo lacks sufficient knowledge or information to respond, and therefore 23 denies the allegations in paragraph 5. 24 25 6. Wells Fargo lacks sufficient knowledge or information to respond, and therefore denies the allegations in paragraph 6. 26 7. The allegations contained in paragraph 7 state legal conclusions for which no 27 response is required. Notwithstanding, to the extent paragraph 7 does require a response, Wells 28 Fargo denies. -222877418 Case 2:15-cv-00577-APG-PAL Document 32-1 Filed 11/16/15 Page 4 of 10 1 8. The allegations contained in paragraph 8 state legal conclusions for which no 2 response is required. Notwithstanding, to the extent paragraph 8 does require a response, Wells 3 Fargo denies. 4 9. The allegations contained in paragraph 9 state legal conclusions for which no 5 response is required. Notwithstanding, to the extent paragraph 9 does require a response, Wells 6 Fargo denies. 7 10. The allegations contained in paragraph 10 state legal conclusions for which no 8 response is required. Notwithstanding, to the extent paragraph 10 does require a response, Wells 9 Fargo denies. 10 11. The allegations contained in paragraph 11 state legal conclusions for which no LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 Snell & Wilm er L.L.P. 11 response is required. Notwithstanding, to the extent paragraph 11 does require a response, Wells 12 Fargo denies. 13 12. The allegations contained in paragraph 12 state legal conclusions for which no 14 response is required. Notwithstanding, to the extent paragraph 12 does require a response, Wells 15 Fargo denies. 16 17 13. Wells Fargo lacks sufficient knowledge or information to respond, and therefore denies the allegations in paragraph 13. 18 14. Wells Fargo denies the allegations in paragraph 14. 19 15. Wells Fargo denies the allegations in paragraph 15. 20 16. Wells Fargo lacks sufficient knowledge or information to respond, and therefore 21 denies the allegations in paragraph 16. 22 17. Wells Fargo denies the allegations in paragraph 17. 23 18. Wells Fargo lacks sufficient knowledge or information to respond, and therefore 24 denies the allegations in paragraph 18. 25 19. Wells Fargo denies the allegations in paragraph 19. 26 20. Wells Fargo lacks sufficient knowledge or information to respond, and therefore 27 denies the allegations in paragraph 20. 28 21. The allegations contained in paragraph 21 state legal conclusions for which no -3- 22877418 Case 2:15-cv-00577-APG-PAL Document 32-1 Filed 11/16/15 Page 5 of 10 1 response is required. Notwithstanding, to the extent paragraph 21 does require a response, Wells 2 Fargo denies.1 3 24. Wells Fargo admits the allegations in paragraph 24. 4 25. Wells Fargo admits the allegations in paragraph 25. 5 22. Wells Fargo lacks sufficient knowledge or information to respond, and therefore 6 denies the allegations in paragraph 22.2 7 23. The Counter Claimant’s Notice of Delinquent Assessment (Lien) was not recorded notice of something that did not exist and had not been recorded when it funded the loan at issue. 10 Wells Fargo lacks sufficient knowledge or information to respond to the allegations remaining in 11 LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 until June 3, 2011, accordingly, neither Wells Fargo nor its predecessor in interest could have had 9 Snell & Wilm er L.L.P. 8 paragraph 23, and therefore denies. 12 24. Wells Fargo admits the allegations in paragraph 24. 13 25. Wells Fargo admits the allegations in paragraph 25. 14 26. Wells Fargo admits the allegations in paragraph 26. 15 27. Wells Fargo admits the allegations in paragraph 27. 16 28. Wells Fargo admits the allegations in paragraph 28. 17 29. Wells Fargo admits the allegations in paragraph 29. 18 30. The allegations contained in paragraph 30 state legal conclusions for which no 19 response is required. Notwithstanding, to the extent paragraph 30 does require a response, Wells 20 Fargo lacks sufficient knowledge or information to respond, and therefore denies the allegations 21 in paragraph 30. 22 31. The allegations contained in paragraph 31 state legal conclusions for which no 23 response is required. Notwithstanding, to the extent paragraph 31 does require a response, Wells 24 Fargo denies. 25 32. Wells Fargo admits that SFR voluntarily dismissed Wells Fargo in Case No. A-13- 26 1 27 28 The Counterclaim skips paragraphs 22 and 23, going directly from 21 to 24. The numbering in this Answer follows the numbering in the Counterclaim. 2 After paragraph 25, the Counterclaim numbering resets to paragraph 22 and continues from that point. The Answer matches the numbering in the Counterclaim. -422877418 Case 2:15-cv-00577-APG-PAL Document 32-1 Filed 11/16/15 Page 6 of 10 1 679367-C. Wells Fargo denies the remaining allegations. 2 33. Wells Fargo admits the allegations in paragraph 33. 3 34. Wells Fargo admits the allegations in paragraph 34. 4 35. Wells Fargo denies the allegations in paragraph 35. 5 FIRST CLAIM FOR RELIEF 6 (Declaratory Relief/Quiet Title Pursuant to NRS 30.010, et seq., NRS 40.010 & NRS 116.3116) 7 36. 8 9 each of its admissions, denials, or other responses herein. 37. 10 LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 Snell & Wilm er L.L.P. 11 12 13 court has jurisdiction and authority over the claims in the First Amended Complaint and the Counterclaim. 38. Wells Fargo denies the allegations in paragraph 42. 43. 19 Wells Fargo denies the allegations in paragraph 41. 42. 18 Wells Fargo denies the allegations in paragraph 40. 41. 17 Wells Fargo denies the allegations in paragraph 39. 40. 16 Wells Fargo admits the allegations in paragraph 38. 39. 15 21 The allegations contained in paragraph 43 state legal conclusions for which no response is required. Notwithstanding, to the extent paragraph 43 does require a response, Wells Fargo denies. SECOND CLAIM FOR RELIEF 22 (Preliminary and Permanent Injunction) 23 44. 24 25 The allegations contained in paragraph 37 state legal conclusions for which no response is required. To the extent paragraph 37 does require a response, Wells Fargo admits this 14 20 Answering paragraph 36, Wells Fargo hereby repeats, re-alleges, and incorporates Answering paragraph 44, Wells Fargo hereby repeats, re-alleges, and incorporates each of its admissions, denials, or other responses herein. 45. 28 Wells Fargo denies the allegations in paragraph 46. 47. 27 Wells Fargo admits the allegations in paragraph 45. 46. 26 Wells Fargo denies the allegations in paragraph 47. -522877418 Case 2:15-cv-00577-APG-PAL Document 32-1 Filed 11/16/15 Page 7 of 10 1 48. Wells Fargo denies the allegations in paragraph 48. 2 49. Wells Fargo denies the allegations in paragraph 49. 3 50. Wells Fargo denies the allegations in paragraph 50. 4 AFFIRMATIVE DEFENSES 5 FIRST AFFIRMATIVE DEFENSE 6 (Failure to State a Claim) 7 8 SFR Investments Pool 1, LLC (“SFR”) and its Counterclaims fail to state a claim against Wells Fargo upon which relief can be granted. 9 SECOND AFFIRMATIVE DEFENSE 10 (Priority) LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 Snell & Wilm er L.L.P. 11 12 SFR took title of the Property subject to the first priority deed of trust, thereby forestalling any enjoinment/extinguishment of the Wells Fargo’s interest in the Property. 13 THIRD AFFIRMATIVE DEFENSE 14 (Assumption of Risk) 15 SFR, at all material times, calculated, knew and understood the risks inherent in its 16 situations, actions, omissions, and transactions upon which it now bases its various claims for 17 relief, and with such knowledge, SFR undertook and thereby assumed such risks and is 18 consequently barred from all recovery by such assumption of risk. 19 FOURTH AFFIRMATIVE DEFENSE 20 (Commercial Reasonableness) 21 The HOA Foreclosure Sale by which SFR took its interest was commercially 22 unreasonable if it extinguished the Deed of Trust as SFR contends. The sales price when 23 compared to the fair market value of the Property demonstrates that the sale was not conducted in 24 good faith as a matter of law, and such a windfall to SFR at the expense of a priority lien-holder is 25 commercially unreasonable. 26 FIFTH AFFIRMATIVE DEFENSE 27 (Equitable Doctrines) 28 Wells Fargo alleges that the SFR’s claims are barred by the equitable doctrines of laches -622877418 Case 2:15-cv-00577-APG-PAL Document 32-1 Filed 11/16/15 Page 8 of 10 1 and failure to do equity in the matters alleged in the Counterclaim. 2 SIXTH AFFIRMATIVE DEFENSE 3 (Acceptance) 4 Wells Fargo asserts that any acceptance of any portion of the excess proceeds does not 5 “satisfy” the amount due and owing on the promissory note and deed of trust and would not 6 constitute a waiver of its rights under the promissory note and deed of trust or statute. 7 SEVENTH AFFIRMATIVE DEFENSE 8 (Waiver and Estoppel) 9 10 Wells Fargo alleges that by reason of SFR’s acts and omissions, SFR has waived its rights and is estopped from asserting the claims against Wells Fargo. LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 Snell & Wilm er L.L.P. 11 EIGHTH AFFIRMATIVE DEFENSE 12 (Due Process Violations) 13 The foreclosure sale pursuant to statute through which SFR claims an interest in the 14 Property violated Wells Fargo’s rights to due process under the Fifth and Fourteenth 15 Amendments to the United States Constitution and relevant portions of the Nevada Constitution. 16 NINTH AFFIRMATIVE DEFENSE 17 (Mitigation) 18 SFR failed to mitigate, minimize, or otherwise avoid its losses, damages, or expenses. 19 TENTH AFFIRMATIVE DEFENSE 20 (Bad Faith) 21 SFR has acted in bad faith and is entitled to no damages as a result. 22 ELEVENTH AFFIRMATIVE DEFENSE 23 (Unclean Hands) 24 SFR has unclean hands and should be barred from bringing this action. 25 TWELFTH AFFIRMATIVE DEFENSE 26 (Good Faith) 27 At all times relevant to SFR’s allegations, Wells Fargo’s actions were taken in good faith, 28 for legitimate purposes, and for just cause, and at no time did Wells Fargo act wrongfully or with -722877418 Case 2:15-cv-00577-APG-PAL Document 32-1 Filed 11/16/15 Page 9 of 10 1 malice or reckless indifference toward SFR’s purported rights. 2 THIRTEENTH AFFIRMATIVE DEFENSE 3 (Wrongful Foreclosure) 4 5 The foreclosure through which SFR alleges it obtained an interest in the Property was conducted in violation of Nevada law and is void. 6 FOURTEENTH AFFIRMATIVE DEFENSE 7 (Public Policy) 8 9 The claims contained in the Counterclaim violate Nevada’s well-established homeowner protection laws and violate Nevada’s public policy. LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 FIFTEENTH AFFIRMATIVE DEFENSE 11 Snell & Wilm er L.L.P. 10 (Property Clause) 12 The actions of SFR and other relevant entities in conducting the HOA Foreclosure Sale 13 did not operate to extinguish the deed of trust pursuant to the Property Clause of the United States 14 Constitution. 15 SIXTEENTH AFFIRMATIVE DEFENSE 16 (Supremacy Clause) 17 18 The actions of SFR and other relevant parties violate the Supremacy Clause of the United States Constitution and the actions are void. 19 SEVENTEENTH AFFIRMATIVE DEFENSE 20 (Preemption) 21 Plaintiff's claim of free and clear title to the Property is barred by 12 U.S.C. § 4617(j)(3), 22 which precludes an HOA sale from extinguishing the Deed of Trust on the Property and preempts 23 any state law to the contrary. 24 EIGHTEENTH AFFIRMATIVE DEFENSE 25 (Additional Affirmative Defenses) 26 Pursuant to Rules 11 and 12 of the Federal Rules of Civil Procedure, all possible 27 affirmative defenses may not have been alleged insofar as sufficient facts are not available after 28 reasonable inquiry upon the filing of SFR’s Counterclaim. Therefore, Wells Fargo reserves the -822877418 Case 2:15-cv-00577-APG-PAL Document 32-1 Filed 11/16/15 Page 10 of 10 1 right to amend this Answer to allege additional affirmative defenses and claims, counterclaims, 2 cross claims, or third-party claims, as applicable, upon further investigation and discovery. 3 PRAYER 4 WHEREFORE, Counter Defendant Wells Fargo prays for judgment as follows: 5 1. 6 That the Court make a judicial determination that the deed of trust is superior to Counter Claimant SFR’s claim of title; 7 2. 8 That the Court make a judicial determination that the deed of trust survived the HOA Foreclosure Sale; 9 3. 10 That the Court make a judicial determination that Counter Claimant SFR took title subject to the deed of trust; LAW OFFICES 50 WEST LIBERTY STREET, SUITE 510 RENO, NEVADA 89501 (775) 785-5440 Snell & Wilm er L.L.P. 11 4. That Counter Claimant SFR recover nothing on account of its Counterclaim; 12 5. For reasonable attorney’s fees and costs; and 13 For any such other and further relief as the Court may deem just and proper in the case. 14 Dated: November 16, 2015 SNELL & WILMER L.L.P. 15 By: 16 17 18 19 20 /s/ Wayne Klomp Jeffrey Willis (NV Bar No. 4797) Amy F. Sorenson (NV Bar No. 12495) Wayne Klomp (NV Bar No. 10109) 50 West Liberty Street, Suite 510 Reno, Nevada 89501-1961 Telephone: (775) 785-5440 Facsimile: (775) 785-5441 Attorneys for Plaintiff and Counter Defendant Wells Fargo Bank, N.A. 21 22 23 24 25 26 27 28 -922877418
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