Buxton et al v. Green Tree Servicing, LLC, No. 2:2015cv01475 - Document 15 (D. Nev. 2015)

Court Description: ORDER Denying Plaintiff's Motion for Preliminary Injunction Contained in 1 Petition for Removal. Signed by Judge James C. Mahan on 8/20/2015. (Copies have been distributed pursuant to the NEF - DC)
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Buxton et al v. Green Tree Servicing, LLC Doc. 15 Case 2:15-cv-01475-JCM-VCF Document 13 Filed 08/18/15 Page 1 of 6 1 2 3 4 5 6 7 8 Robin E. Perkins, Esq. Nevada Bar No. 9891 Sarah A. Mead, Esq. Nevada Bar No. 12375 SNELL & WILMER L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone (702) 784-5200 Facsimile (702) 784-5252 Email: rperkins@swlaw.com smead@swlaw.com Attorneys for Defendant Green Tree Servicing LLC UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 9 10 Snell & Wilmer ___________ ___________ L.L.P. LAW OFFICES 50 WEST LIBER TY STR EET, SUITE 51 0 RENO, NEV ADA 89501 (775) 785-5440 11 GREGORY L. BUXTON, an individual, and TRACIE L. BUXTON, an individual, 12 Plaintiff, 13 [PROPOSED] FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION vs. 14 GREEN TREE SERVICING LLC, a Foreign limited liability company; DOE INDIVIDUALS 1-10 and ROE CORPORATIONS I through X, inclusive 15 16 17 Case No.: 2:15-cv-01475-JCM-VCF Defendants. 18 19 20 Plaintiffs Gregory L. Buxton and Tracie L. Buxton’s (“Plaintiffs”) Motion for Preliminary 21 Injunction came on for hearing on August 13, 2015. Robin E. Perkins, Esq. of the law firm of 22 Snell & Wilmer L.L.P. appeared on behalf of Green Tree Servicing LLC (“Green Tree”). Gregory 23 Miles, Esq. of the law firm of Royal & Miles LLP appeared on behalf of the Plaintiffs. 24 The Court reviewed the pleadings and papers on file, and all exhibits attached thereto; and 25 heard oral argument from counsel for Plaintiffs and Defendant. Good cause appearing therefor, 26 this Court hereby enters the following order denying Plaintiffs’ Motion for Preliminary Injunction 27 [Doc. No. 1] and dissolving the Temporary Restraining Order granted on or about July 28, 2015, 28 in the Eighth Judicial District Court, Clark County Nevada. -1Dockets.Justia.com Case 2:15-cv-01475-JCM-VCF Document 13 Filed 08/18/15 Page 2 of 6 1 2 FINDINGS OF FACT 1. On February 9, 2008, Plaintiffs executed a promissory note (“Note”) and deed of 3 trust in favor of Quicken Loans in the amount of $314,000 in order to refinance the real property 4 located at 1522 Tree Top Court, Henderson, Nevada (the “Property”). 5 2. The Deed of Trust was recorded on March 4, 2008, in the records of the Clark 6 County Recorder’s office. (“Deed of Trust”, attached as Exhibit A to Green Tree’s Request for 7 Judicial Notice “RJN”.) 8 9 10 Snell & Wilmer ___________ ___________ L.L.P. LAW OFFICES 50 WEST LIBER TY STR EET, SUITE 51 0 RENO, NEV ADA 89501 (775) 785-5440 11 3. On the same day, Gregory L. Buxton executed a Quitclaim Deed, creating a joint tenancy in the Property with his wife and co-Plaintiff, Tracie L. Buxton. (“Quitclaim Deed”, Exhibit B to RJN.) 4. Plaintiffs admit that they have not made any mortgage payments, due under their 12 Note and Deed of Trust, since on or about December 2010. (Compl. ¶ 6; Plaintiff’s Motion for 13 TRO and for Preliminary Injunction 4:16-18.) 14 5. On or about May 17, 2011, Quicken Loans executed an Assignment of Deed of 15 Trust to BAC Home Loan Servicing, LP FKA Countrywide Home Loans Servicing, LP, which 16 was recorded on May 19, 2011, in the records of the Clark County Recorder’s office. (“First 17 Assignment”, Exhibit C to RJN.) 18 6. On or about June 12, 2013, BAC Home Loans Servicing LP executed an 19 Assignment of Deed of Trust to Green Tree, which was recorded on July 2, 2013, in the records 20 of the Clark County Recorder’s office. (“Second Assignment”, Exhibit D to RJN.) 21 7. On or about October 14, 2013, National Default Servicing Corporation was 22 substituted as Trustee of the Deed of Trust, which substitution was recorded on October 17, 2013. 23 (“Substitution”, Exhibit E to RJN.) 24 25 26 27 28 8. Green Tree recorded a Notice of Default and Election to Sell Under the Deed of Trust on the Property on January 28, 2015. (“Notice of Default”, attached as Exhibit F to RJN.) 9. Other than recording its Notice of Default, Green Tree has not recorded any other foreclosure notices. (See generally RJN.) 10. Green Tree has not foreclosed the Property. (See generally RJN.) -2- Case 2:15-cv-01475-JCM-VCF Document 13 Filed 08/18/15 Page 3 of 6 1 2 3 4 5 6 7 8 9 11. On or about June 9, 2015, the parties participated in mediation pursuant to the Nevada Foreclosure Mediation Program. (Compl. ¶ 43.) 12. After the mediation, Plaintiffs did not file a petition for judicial review pursuant to Nevada Foreclosure Mediation Rule 22. 13. On June 22, 2015, Plaintiffs filed their Complaint and recorded a Notice of Pendency of Action on June 23, 2015. [Doc. No. 1.] 14. On July 23, 2015, Plaintiffs filed a Motion for Temporary Restraining Order and For Preliminary Injunction on Order Shortening Time. [Doc. No. 1.] 15. On July 28, 2015 the Eighth Judicial District Court, Clark County Nevada granted Snell & Wilmer ___________ ___________ a Temporary Restraining Order and scheduled a hearing on the request for a preliminary 11 L.L.P. LAW OFFICES 50 WEST LIBER TY STR EET, SUITE 51 0 RENO, NEV ADA 89501 (775) 785-5440 10 injunction. 12 13 CONCLUSIONS OF LAW 1. “A preliminary injunction to preserve the status quo is normally available upon a 14 showing that the party seeking it enjoys a reasonable probability of success on the merits and that 15 the defendant’s conduct, if allowed to continue, will result in irreparable harm for which 16 compensatory damages is an inadequate remedy.” No. One Rent-A-Car v. Ramada Inns, Inc., 94 17 Nev. 779, 780-81, 587 P.2d 1329, 1330 (1978); Winter v. Nat. Resources Defense Council, 18 Inc., 555 U.S. 7 (2008). 19 2. Plaintiffs are in default under their mortgage obligations; therefore they cannot 20 bring a claim for wrongful foreclosure as a matter of law. Collins v. Union Federal Sav. & Loan 21 Ass’n, 99 Nev. 284, 304, 662 P.2d 610, 623 (Nev. 1983) (finding that “the material issue of fact in 22 a wrongful foreclosure claim is whether the trustor was in default when the power of sale was 23 exercised.”); Guertin v. One W. Bank, FSB, No. 2:11-CV-01531-JCM-PAL, 2012 WL 727352, at 24 *5 (D. Nev. Mar. 6, 2012) (“[A] plaintiff cannot state a claim for wrongful foreclosure when she 25 admits she is in default-that is, that she stopped making payments on her mortgage.”) 26 3. Additionally, there has been no foreclosure of the real property at issue, 27 accordingly Plaintiffs’ claim for wrongful foreclosure is premature, and fails as a matter of law. 28 Camacho-Villa v. Great W. Home Loans, No. 3:10-CV-210-ECR-VPC, 2011 WL 1103681, at *7 -3- Case 2:15-cv-01475-JCM-VCF Document 13 Filed 08/18/15 Page 4 of 6 1 (D. Nev. Mar. 23, 2011) (“Plaintiffs filed both their original (# 1) and amended (# 26) complaints 2 before the Property was sold. As such, Plaintiffs’ claim for wrongful foreclosure is premature and 3 not actionable.”) 4 4. Plaintiffs’ claims for declaratory relief and injunctive relief are remedies, not 5 independent causes of action, and therefore fail as a matter of law. Haskell v. PNC Bank, N.A., 6 No. 3:11-CV-887-RCJ-VPC, 2012 WL 3206503, at *2 (D. Nev. Aug. 3, 2012) (holding that 7 “Plaintiffs’ claims in their first cause of action for injunctive and declaratory relief are not 8 independent claims, but are dependent claims based on the assertion that the foreclosure process 9 in this case was not in accordance with NRS § 107.080 and § 107.086.”) 10 Snell & Wilmer ___________ ___________ L.L.P. LAW OFFICES 50 WEST LIBER TY STR EET, SUITE 51 0 RENO, NEV ADA 89501 (775) 785-5440 11 12 5. Additionally, because Plaintiffs’ wrongful foreclosure claim fails as a matter of law, the claims for declaratory relief and injunctive relief likewise cannot stand. 6. Plaintiffs cannot demonstrate irreparable injury. As a result of Plaintiffs’ election 13 to stop paying their mortgage, Plaintiffs lost any interest in or right to the Property. Plaintiffs do 14 not have the “right” to reside in the Property for which they are not repaying the loan that enabled 15 them to purchase the Property in the first place. Accordingly, foreclosure of the Property which 16 they have resided in for more than four years for free will not cause irreparable harm. 17 18 19 7. Plaintiffs do not address, let alone establish, that the balance of equities tips in their favor or that the injunction is in the public’s interest. 8. Plaintiffs have failed to establish any or all of the elements necessary to obtain 20 injunctive relief. Plaintiffs have failed to establish: (1) a likelihood of success on the merits; (2) 21 irreparable injury is likely; (3) the balance of equities tip in their favor; or (4) that an injunction is 22 in the public interest. 23 24 25 26 27 28 -4- Case 2:15-cv-01475-JCM-VCF Document 13 Filed 08/18/15 Page 5 of 6 1 Case No.: 2:15-cv-01475-JCM-VCF 2 3 4 5 6 ORDER Based upon the Findings of Fact and Conclusions of Law above, this Court enters the following Order: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiffs Gregory L. Buxton and Tracie L. Buxton’s Motion for Preliminary Injunction is DENIED. 7 IT IF FURTHER ORDERED, ADJUDGED AND DECREED that Temporary Restraining 8 Order granted on or about July 28, 2015 in the Eighth Judicial District Court, Clark County 9 Nevada, is dissolved and no longer in force or effect, effective as of August 13, 2015. Snell & Wilmer ___________ ___________ IT IF FURTHER ORDERED, ADJUDGED AND DECREED that if Plaintiffs have 11 L.L.P. LAW OFFICES 50 WEST LIBER TY STR EET, SUITE 51 0 RENO, NEV ADA 89501 (775) 785-5440 10 posted a cash or security bond with the Eighth Judicial District Court, Clark County Nevada, in 12 the amount of $2,500.00, as ordered by the Temporary Restraining Order, such cash or security 13 bond shall be released, effective as of August 13, 2015. 14 Dated this _____ day of _____________, 2015. August 20, 2015. 15 16 ______________________________________ U.S. District Judge 17 18 19 Respectfully submitted: SNELL & WILMER L.L.P. 20 21 22 23 24 25 26 By: /s/ Robin E. Perkins Robin E. Perkins, Esq. Nevada Bar No. 9891 Sarah A. Mead, Esq. Nevada Bar No. 13725 3883 Howard Hughes Parkway Suite 1100 Las Vegas, Nevada 89169 Attorneys for Defendant Green Tree Servicing LLC 27 28 -5- Case 2:15-cv-01475-JCM-VCF Document 13 Filed 08/18/15 Page 6 of 6 1 CERTIFICATE OF SERVICE 2 I, the undersigned, declare under penalty of perjury, that I am over the age of eighteen 3 (18) years, and I am not a party to, nor interested in, this action. On this date, I caused to be 4 served a true and correct copy of the foregoing: [PROPOSED] FINDINGS OF FACT, 5 CONCLUSIONS OF LAW AND ORDER DENYING PLAINTIFF’S MOTION FOR 6 PRELIMINARY INJUNCTION by the method indicated: 7 U. S. Mail 8 U.S. Certified Mail 9 ___ 10 __X__ Facsimile Transmission Electronic Service (CM/ECF electronic system) Snell & Wilmer ___________ ___________ L.L.P. LAW OFFICES 50 WEST LIBER TY STR EET, SUITE 51 0 RENO, NEV ADA 89501 (775) 785-5440 11 12 and addressed to the following: 13 14 15 16 Gregory A. Miles, Esq. Royal & Miles LLP 1522 W. Warm Springs Road Henderson, Nevada 89014 702.471.6777 17 18 DATED 18th day of August, 2015. 19 20 /s/ Maricris Williams An employee of Snell & Wilmer L.L.P. 21 22 23 24 25 26 27 28 -6-