The Bank of New York Mellon, v. Las Vegas Development Group LLC, et al, No. 2:2016cv00478 - Document 19 (D. Nev. 2017)
Court Description: ORDER Granting 18 Stipulation to File First Amended Complaint. Signed by Judge James C. Mahan on 12/22/2017. (Copies have been distributed pursuant to the NEF - MR)
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The Bank of New York Mellon, v. Las Vegas Development Group LLC, et al 1 2 a J 4 5 6 7 8 Doc. 19 Andrew M. Jacobs, Esq. Nevada Bar No. 12787 Blakeley E. Grifhth, Esq. Nevada Bar No. 12386 Holly E. Cheong, Esq. Nevada Bar No. 11936 SNELL & WILMER L,L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone: (702) 7 84-5200 Facsimile: (7 02) 7 84-5252 Email: ajacobs@swlaw.com bgriffrth@swlaw.com hcheong@swlaw.com Attorneys þr Plaintiff Bank of New York Mellon 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 o I2 ? Srr (.) | y lô FI i- I t{'l .3 Þt i ËË3i j 13 r4 ö såÈ ,"r 4) t èþ ¿¡-. |fi-rö3 -ol2: I S,1 õt - É- 15 t6 I7 THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEV/ YORK AS SUCCESSOR IN INTEREST TO JP MORGAN CHASE BANK NA AS TRUSTEE FOR STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. BEAR STEARNS ALT-A TRUST 2005.9, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2OO5- Case No. : 2: I 6-cv-00478-JCM-GV/F STIPULATION AND ORDER TO FILE FIRST AMENDED COMPLAINT 9, Plaintiff, 18 VS. I9 LAS VEGAS DEVELOPMENT GROUP LLC, aNevada limited-liability company; ROYAL HIGHLANDS STREET AND LANDSCAPE MAINTENANCE CORPORATION, a Nevada non-profit corporation; and ALESSI & KOENIG, LLC, a Nevada limited-liability company; 20 2l 22 23 Defendants. 24 25 26 27 28 Plaintiff the Bank of New York Mellon, fka The Bank of New York as Successor in Interest to JP Morgan Chase Bank NA as Trustee for Structured Asset Mortgage Investments II Inc. Bear Steams ALT-A Trust 2005-9, Mortgage Pass-Through Certificates, Series 2005-9 4834-48',t2-7896 Dockets.Justia.com I ("BNYM" or "Plaintiff'), and Defendants Las Vegas Development Group LLC (.'LVDG") 2 Alessi J "Parties"), by and through their respective counsel, hereby stipulate to allow Plaintiff to file 4 First Amended Complaint ("FAC") as follows: and & Koenig, LLC ("Alessi & Koenig" and collectively with BNYM and LVDG, the a 5 WHEREAS, on March 4,2016, Plaintiff filedits Complaint (ECF No. 1) ("Complaint"); 6 WHEREAS, no party has answered the Complaint, however both LVDG and Alessi & 7 8 9 10 Koenig have appeared in the action (ECF No. 12 and ECF No. l4); WHEREAS, the Parties agree to allow Plaintiff to file the FAC, a copy of which is attached hereto as Exhibit 1; WHEREAS this request is not made for purposes of delay and is supported by good cause; 11 t2 o : +rr (Jl dl L.jt Y :^ ;; ,õô F I niis tr iEËii ,Z i;'-*i\ I <i t - ^ 13 14 !l-Ø F,H -a.¡ I i: li I áJ UDI Ë 15 I6 3 t7 18 t9 20 2l 22 23 24 25 26 27 28 .\ -L4834-48'12-7896 NOW, THEREFORE, in consideration of the foregoing, and for good cause, IT 1 2 HEREBY STIPULATED AND AGREED, by and between the Parties as follows: . 2. J 1 4 Plaintiff shall file its FAC within five (5) days of this Order; Alessi & Koenig and LVDG shall f,rle a response to the FAC within thirty (30) 5 days thereafter. 6 IT IS SO STIPULATED. 7 Dated: December 8 20,2017. SNELL & WILMER L.L.P. 9 l0 11 I2 ? ol ;tst 13 i. I Iit.3 F iË¡;i I4 ) 4) =oqzP t ù"-^ = -i I 5r YÉ õl ia õt - I g( r" By Dated: December 20,2017. ROGER P. CROTEAU & ASSOCIATES, LTD. ,ßlLLilu, ?.frrfu/^ /s/ Timothv E. Roger P. Croteau Q.{V Bar No. 4958) Timotþ E. Rhoda (lrIV Bar No. 7878) 9120 V/est Post Road, Suite 100 Las Vegas, NV 89148 Telephone: (7 02) 254-7 7 7 5 Facsimile: (7 02) 228-77 19 Attorneys for Defendant Las Vegas Development Group LLC By: Andrevv tvI. J¿lcobs Q.trV Bar No. 12787) Blakeley E. Griffith Q.{V Bar No. 12386) Holly E. Cheong (NV Bar No. 11936) 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone : (7 02) 7 8 4 - 5200 Facsimile: (7 02) 784-5252 Attorneys þr Plaintiff Bank of New York Mellon 15 t6 s t7 18 t9 20 2l Dated: December 20, 2017. HOA LAWYERS GROUP, LLC By: /s/ Steven T. T.Loizzi, Jr. Q'{V Bar No. 10920) 9500 V/est Flamingo Road, Suite 204 Las Vegas, NV 89147-5721 Telephone : (7 02) 222-4033 Facsimile: (702) 222-4043 Attorneys for Defendant Alessi & Koenig Steven 22 ORDER 23 24 IS IT IS SO ORDERED. December 22, 2017 DATED: 25 26 UNITED STATES DISTRICT COURT JUDGE 27 28 -J4834-48't2-',l896 CERTIFICATE OF' SERVICE I 2 I hereby certify that on December 20,2017, I electronically filed the foregoing a J STIPULATION AND ORDER TO FILE FIRST AMENDED COMPLAINT With 4 of Court for the U.S. District Court, District of Nevada by using the Court's CM/ECF 5 Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. 6 DATED this 20th day of December 2017 7 8 An 9 l0 11 ?12 Hl ãs t3 L >lËirq t4 ¿i;t?t ls I ãl-rã ,E I iå' 16 -<- 99É 3 F'17 18 t9 20 2T 22 23 24 25 26 27 28 -44834-4872-7896 Snell & Wilmer L.l.P. thE CIETK system. 1 2 J 4 5 6 Andrew M. Jacobs, Esq. Nevada Bar No. 12787 Blakeley E. Griffith, Esq. Nevada Bar No. 12386 Holly E. Cheong, Esq. Nevada Bar No. 11936 SNELL & V/ILMER I.I.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone: (702) 784-5200 Facsimile: (702) 7 84-5252 Email: ajacobs@swlaw.com bgriffith@swlaw.com 7 8 hcheong@swlaw.com Attorneys þr Plaintiff Bank of New York Mellon 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 o l¡r (.)l cl lrl ia t2 z y ;Øa 13 '1o I F¡1.3 ¿t l;i!n t4 -q tr ) =oïz? Q t Ð"*4,:; 15 fi -r I 13 õlrì r ll i-1 UDI ì g t6 t7 18 T9 20 2l 22 23 THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEV/ YORK AS SUCCESSOR IN INTEREST TO JP MORGAN CHASE BANK NA AS TRUSTEE FOR STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. BEAR STEARNS ALT-A TRUST 2OO5-9, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2OO5- Case No. : 2: 1 6-ov-00478-JCM-GWF FIRST AMENDED COMPLAINT 9, Plaintiff, vs. LAS VEGAS DEVELOPMENT GROUP LLC, aNevada limited-liability company; ROYAL HIGHLANDS STREET AND LANDSCAPE MAINTENANCE CORPORATION, a Nevada non-Profit corporation; ALESSI & KOENIG, LLC, a Nevada limited-liability company; and AIRMOTIVE INVESTMENTS, LLC, A Nevada limited-liability company, 24 25 26 27 28 Defendants. plaintiff, The Bank of New York Mellon, fka The Bank of New York as Successor in Interest to Jp Morgan Chase Bank NA as Trustee for Structured Asset Mortgage Investments II 1 Inc. Bear Steams ALT-A Trust 2005-9, Mortgage Pass-Through Certificates, Series 2005-9 2 ("BNYM" or "Plaintiff'), by and through its counsel, Snell & V/ilmer J Amended Complaint and states as follows: PARTIES. JURISDICTION. AND VENUE 4 5 L.L.P., submits this First 1. Plaintiff BNYM is the beneficiary of a mortgage loan secured by a Deed of Trust 6 recorded on or about August 5,2005, against the real property located af 10912 Fishers Island 7 Street, Las Vegas, Nevada 8914I, 8 9 10 2. APN 177-31-714-009 (the "Property")' Upon information and beliet Defendant Las Vegas Development Group, LLC ("LVDG") is a Nevada limited-liability company doing business in Clark County, 3. Nevada. Upon information and belief, Defendant Royal Highlands Street and Landscape 11 : bt Ø: trl :- Ë I n9?' tr iËj;i .4=oizP ? r >idA -.i I 5r fÉ õlt>^ ,El Maintenance Corporation (the "HOA") is a Nevada non-profit corporation doing business in, and t2 with its principal place of business in, Clark County, Nevada. l3 T4 15 äj I6 Ë T1 18 t9 4. Defendant Alessi & Koenig, LLC ("Alessi") is a Nevada limited-liability company doing business in Clark County, Nevada. 5. Upon information and belief, Defendant Airmotive Investments, LLC (,'Airmotive") is a Nevada limited-liability company doing business in Clark County, Nevada. 6. This Court has jurisdiction over the counts of the present action pursuant fo 28 u.s.c. $ 1331. 7. This Court has supplemental jurisdiction pursuant to 28 U.S.C. $ 1367(a) over 20 plaintiff 2I to Plaintifls claims under federal law, form part of the same case or controversy, and are derived 22 from a common nucleus of operative facts. s claims arising under the laws of the State of Nevada, because those claims are related 23 8. 24 within this district, 25 district because a substantialpart of the events or omissions giving rise to the claim occurred in 26 this judicial district, as provided in 28 U.S.C. $ 1391(bX2). 27 28 g. Venue is proper in this district because Defendants reside and conduct business as provided in 28 U.S.C. $ 1391(bX1). Alternatively, venue is proper in this This Court has personal jurisdiction over Defendants because Defendants reside and conduct business within this district and the State of Nevada. a GENERAL ALLEGATIONS 1 This case is about the constitutionality of Nevada Revised Statute ("NRS") 10. 2 16.3 I 16, both on its face and as applied. In particular, it concerns the purported extinguishment J 1 4 of BNYM's Deed of Trust-and also a large debt owed to BNYM-by the foreclosure of a small 5 homeowners' association lien on the Property, though the mortgage debt came before the lien. 11. 6 Chapter 116 of the Nevada Revised Statutes generally provides a non-judicial 7 foreclosure scheme for a homeowners' association to conduct a non-judicial foreclosure where 8 the unit owner fails to pay its monthly assessments. junior to a 10 first deed of trust benef,rciary's secured interest in the property with one limited exception: a 11 homeowners' association lien is senior to a first deed of trust beneficiary's secured interest "to the T2 extent of the assessments for common expenses based on the periodic budget adopted by the 13 association pursuant 12. 9 o l¡r assessments z c)l y ;FI .r \ NRS 1 16.3116 makes a homeowners' association lien for I i-íà ô I i{-i do tr l;È!q t4 >) )Q Yzi: 4) I è-"**x -r I 5r PÉ õl!ì dl Ëj UDI i 3 to NRS 116.3115 which would have become due in the absence of acceleration during the 9 months immediately preceding institution of an action to enforce the 15 lien[.]" NRS T6 13. 1 16.3 1 16(2Xc). The Ninth Circuit Court of Appeals has recently declared certain portions of 16 of the Nevada Revised Statutes unconstitutional because the notice provisions do not t7 Chapter 18 meet minimum standards t9 Constitution. Bourne Valley Court Trust v. l(ells Fargo Bank, N.A.,832 F.3d 1154 (9th Cir. 20 2016). 2l 1 14. of due process under the Fourteenth Amendment to the U.S. On or about JuIy 25, 2005, Ronald Burnside (the "Borrower") executed a 22 Promissory Note ("Note") secured by a Deed of Trust in the amount of Three Hundred Fifty-Four 23 Thousand Two Hundred Fifty and 00/100 Dollars ($354,250.00) in favor of Stearns Lending, Inc. 24 as the beneficiary, Mortgage Electronic Registration Systems, Inc. as the nominee for the lender 25 (Stearns), and First American Title as the trustee' 26 15. The Deed of Trust was recorded in the Offrce of the Clark County Recorder 27 ("Recorder's Offrce") on August 8, 2005, as Instrument Number 20050805-0004376 (the "Deed 28 of Trust") and was filed against the Property' a -J- 16. 1 On or about July 25, 2005, Borrower executed a second promissory note in the 2 amount of Ninety Four Thousand Four Hundred Fifty and 00/100 Dollars ($94,450.00) in favor of J Steams Lending, Inc. which was secured by a second deed of trust 4 Recorder's Office on August 8, 2005, as Instrument Number 20050805-0004377. 17. 5 6 7 filed on the Property with the Thereafter, BNYM is informed and believes, and thereon alleges, that Borrower stopped making payments due under the Deed of Trust and likewise stopped paying HOA dues. 18. On or about November 5,2010, a Notice of Delinquent Assessment was recorded 8 with the Recorder's Offrce as Instrument Number 201011050003208. The Notice of Delinquent 9 Assessment was submitted by Alessi on behalf of the HOA for outstanding amounts owed as 10 1t .l | . On or about January 13, 2011, a Notice of Default and Election to Sell under 201101130001575. The Notice of Default and Election to Sell under Homeowners Association I 8;äs t4 jöp¿Ë Lien was submitted by Alessi on behalf of the HOA for outstanding amounts owed as of April 19, dE{{' Ê 19. $ I ,3 14 13 É Itx C) , 2010 , in the amount of Homeowners Association Lien was recorded with the Recorder's Offtce as Instrument Number z tr U) 7 I2 lr t9 (.) ,z October of tìå$e l¡) I tf !s E 15 t6 2011, in the amount of 52,149.52. 20, On or about Mray 4, 2011, Mortgage Electronic Registration Systems, Inc., as t7 nominee for Stearns Lending, Inc., transferred and assigned any beneficial interest in the Note 18 and Deed of Trust to BNYM, pursuant to that certain Assignment of Deed of Trust, recorded in t9 the Recorder's Office as Instrument Number 201104040002575. 20 21. On or about April 2, 2012, a Notice of Trustee's Sale was recorded with the 2l Recorder's Off,rce as Instrument Number 201204020001883. The Notice of Trustee's Sale was 22 submitted by Alessi on behalf 23 Delinquent Assessment and listed outstanding amounts owed as $4,622.25. The Notice of 24 Trustee's Sale set adate of sale for April25,2012. 25 22. of the HOA pursuant to the November 5, 2010 Notice of On or about October 2, 2012, a Notice of Violation (Lien) was recorded with the of Violation 26 Recorder's Office as Instrument Number 20121002000174I. The Notice 27 submitted by Alessi on behalf of the HOA for outstanding amounts owed as of September 18, 28 2012, in the amount of $26,200.00. -4- was 23. 1 On or about December 13,2012, a Substitution of Trustee was recorded with the 2 Recorder's Offrce as Instrument Number 201212130002175 removing First American Title as the J trustee and naming Quality Loan Service Corporation as the trustee under the Deed of Trust. 24. 4 On or about February 28,2013, a Notice of Breach and Default and of Election to 5 Cause Sale of Real Property under Deed of Trust was recorded with the Recorder's Office as 6 Instrument Number 201302280003226. The Notice of Breach and Default and of Election to Sell 7 under Deed 8 outstanding amounts owed on the Deed of Trust' of Trust was submitted by Quality Loan 25. 9 Service Corporation as the trustee for On or about March 18,2013, a Trustee's Deed upon Sale was recorded with the 10 11 bt tst : :- Recorder's Off,rce as Instrument Number 201303080003502. The Trustee's Deed upon Sale was submitted by Alessi on behalf t2 $25,100.00 at public auction on March 6,2013, and noted that the amount of unpaid debt together T3 with costs was $7,896.56. of the HOA and showed LVDG purchased the Property for Ë tr I ËjEi I T4 3 r<;pe 15 Recorder's Offrce as Instrument Number 20t306030003905. The Notice of Trustee's Sale was UDI i r6 submitted F t7 5442,002.26 was outstanding on the Deed of Trust. n;î= ¿ iö s2þ õlrìËj dl 26. the by Quality Loan Service Corporation as the trustee, noting that the amount of 27. 18 On or about June 3, 2013, a Notice of Trustee's Sale was recorded with On or about August 12,2013, a Certificate with respect to the State of Nevada T9 foreclosure mediation program was recorded with the Recorder's Office as Instrument Number 20 201308120001430. The Certificate was submitted by Quality Loan Service Corporation, the 2l trustee. 22 2g. On or about August 19,2013, aNotice of Trustee's Sale was recorded with the z.) Recorder's Office as Instrument Number 201308190002005. The Notice of Trustee's Sale was 24 submitted 25 $448,108.87 was outstanding on the Deed of Trust. 26 by Quality Loan Service Corporation as the trustee, noting that the amount of 29. On or about September 12,2013, an Amended Lis Pendens was recorded with the 27 Recorder's Off,rce as Instrument Number 201309120001184. The Amended Lis Pendens was 28 frled by LVDG. 5 1 30. On or about January 4, 2017, LVDG purported to convey the Property to 2 Airmotive for "$1.00" by a Grant Deed recorded with the Recorder's Offtce as Instrument J Number 20 17 0l 4 5 6 7 8 9 10 31. 05 -00027 52. BNYM is the beneficiary of the Deed of Trust, with standing and authority to initiate this action. 32. On or about March 6,2013, the HOA and Alessi wrongfully foreclosed against the Property in reliance upon NRS 1 16.31 16 et seq. (the "Statute"). 33. The purported foreclosure sale under NRS 116.3116 et seq. did not extinguish BNYM's Deed of Trust, which continues to constitute 34. a valid encumbrance against the Property. Upon information and belief, the HOA and Alessi failed to give notice, andlor 11 t2 a l¡r C.)l : I ;^ Ø2 trl > IgË€F j É ús ' .i l:.(¡ o failed to give constitutionally adequate notice to BNYM of the HOA's assessment lien required by the Supreme Court in Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983), I3 giventhatNRS 116.3116etseq. onitsfaceviolatesBNYM'srightstodueprocesssecuredby I4 both the Fifth and Fourteenth Amendments to the United States Constitution. as .- ,z i3 _ä1X l5f ¡) iÉ -i -l El UDI s¡ Ë Ë 15 35. Upon information and beliet the HOA and Alessi also failed to give notice, andlor t6 failed to give constitutionally adequate notice to BNYM of the HOA's Notice of Default and t7 Election to Sell. t8 T9 20 36. Upon information and belief, the HOA and Alessi also failed to give notice, and/or failed to give constitutionally adequate notice to BNYM of the HOA's Notice of Sale. 37. The HOA and Alessi failed to identify the super-priority amount claimed by the 2l HOA and failed to describe the "deficiency in payment" required by NRS 116.31162(1Xb)(l) in 22 the HOA's Notice of Default. 23 38. The HOA and Alessi failed to identify the super-priority amount claimed by the 24 HOA and failed to describe the "deficiency in payment" required by NRS 116.31162(1XbXl) in 25 the HOA's Notice of Trustee's Sale. 26 39. The HOA and Alessi failed to provide notice of the purported super-priority lien 27 amount, where to pay the amount, how to pay the amount, or the consequences for the failure to 28 do so in any of the recorded documents. -6- 40. I 2 The HOA and Alessi failed to identify the amount of the alleged lien that was for late fees, interest, fines/violations, or collection fees/costs in any of the recorded documents. 41. J The HOA and Alessi failed to identify if the HOA was foreclosing on the super- 4 priority portion of its lien, if any, or on the sub-priority portion of its lien in any of the recorded 5 documents. 42. 6 7 43. documents that The HOA and Alessi failed to market, sell, or auction the Property for a commercially reasonable value. 44. 10 1l in any of the recorded PlaintifPs interest in the Property would be extinguished by the HOA foreclosure. 8 9 The HOA and Alessi failed to specify Defendant LVDG purports to have purchased the Property at the March 6,2013, foreclosure sale for $25,100.00. 45. 12 The Property has an approximate fair market value well in excess of the 7 $25, 1 00.00 purchase price. Elåq lrl ia 13 > Isitq t4 46. ,ði3Êr2o; 15 I 5r YÉ unreasonable. TliÌ -r CDI Í g 47. 16 t7 The sale and purchase of the Property was unconscionable and commercially The HOA and Alessi failed to remit any excess proceeds from the foreclosure sale to Wells Fargo in violation of NRS 1 16.31 16 et seq. 48. 18 Concurrent with filing this action and pursuant to NRS 30.130, BNYM t9 notified the Nevada Attorney General's Offrce of this constitutional challenge to NRS 20 has et seq. 23 24 25 26 27 16.31 16, FIRST CAUSE OF ACTION 2I 22 1 (Declaratory Retief under Amendment V to the United States Constitution Takings Clause - Against All Defendants) 49. 50. BNYM repeats and re-alleges the allegations - set forth in Paragraphs 1-48 herein. Pursuant to 28 U.S.C. $ 2201, this Court is empowered to declare the rights and legal relations of the parties in this matter, both generally and in relation to the foreclosure sale and the Property. 28 -7- 1 51. The foreclosure pursuant to NRS 1 16.31 16 et seq. effected a regulatory taking of 2 BNYM's secured interest in the Property without just compensation, in violation of the Fifth J a Amendment to the United States Constitution which prohibits "private property befing] taken 4 without just compensation." U.S. Const. amend. V. 5 6 7 8 9 52. NRS 1 16.3116 et seq. on its face effects a regulatory taking of BNYM's secured interest in the Property without just compensation, in violation of the Fifth Amendment. 53. An actual and justiciable controversy exists between BNYM and Defendants regarding the purported foreclosure sale and the rights associated with the foreclosure sale. 54. Without declaratory relief, an interpretation of NRS 116.3116 et seq., and an 10 interpretation of the constitutional validity of NRS 116.3116 et seq., BNYM's rights and secured 11 interest in the Property t2 l¡r C)l z I ;ô FI T3 :a Iüt-3 I4 Pr l;Jtì ,., j õ såÈ 55. will be adversely affected. Based upon the foregoing, BNYM requests an order declaring that the purported foreclosure sale under NRS 1163116 et seq. did not extinguish BNYM's Deed of Trust, which continues as a valid encumbrance against the Property. 56. c(J I È*tst 15 UDI ; r6 foreclosure sale be voided and set aside because the foreclosure pursuant to NRS 1 16.31 16 et seq. T7 effected 18 compensation, in violation of the Fifth Amendment to the United States Constitution. -iY I Sr fÈ: I ãs Li I ì-j I9 20 2T 22 a Based upon the foregoing, BNYM requests an order declaring that the purported regulatory taking 57., 25 26 in the Property without just in an amount to be proven at trial hereof. BNYM has been compelled to retain the undersigned counsel to represent it in this matter and has and will continue to incur attorney's fees and costs. SECOND CAUSE OF ACTION 23 24 secured interest BNYM has been damaged by the HOA, Alessi, LVDG, and Airmotive's conduct as specified herein 58. of BNYM's (Declaratory Relief under Amendments V and XIV to the United States Constitution Due Process Clauses - Against All Defendants) 59. BNYM repeats and re-alleges the allegations 27 28 -8- - set forth in Paragraphs 1-58 herein. 1 60. Pursuant to 28 U.S.C. ç2201, this Court is empowered to declare the rights and 2 legal relations of the parties in this matter, both generally and in relation to the foreclosure sale J and the Property. 4 61. NRS 116.3116 et seq. on its face violates BNYM's constitutional rights, in 5 particular those rights to due process secured by the Fifth and Fourteenth Amendments to the 6 United States Constitution which provide that the government shall not deprive any person "of 7 life, liberty, or property, without due process of law" and is thus void and unenforceable. U.S. 8 Const. amend. V, XIV. 9 62. Any purported notice provided was inadequate, insufficient, and in violation of 10 1l l¡¡ BNYM's rights to due process under the Fifth and Fourteenth Amendment to the United States Constitution. t2 : y Hlãs HI .Ê l;íl 13 ô 63. An actual and justiciable controversy exists between BNYM and Defendants regarding the purported foreclosure sale and the rights associated with the foreclosure sale. 64. Without declaratory relief, an interpretation of NRS 116.3116 et seq., and > IgiËn t4 "¿jöqåÈ 4) I Ð-.*n= 15 interpretation of the constitutional validity of NRS 116.3116 et seq,, BNYM's rights and secured öt f ì'i t6 interest in the Property Ë I7 8È: -i I 51 õltì Li I 65. will an be adversely affected. Based upon the foregoing, BNYM requests an order declaring that the purported 18 foreclosure sale under NRS 116.3116 et seq. did not extinguish BNYM's Deed of Trust, which l9 continues as a valid encumbrance against the Property. 20 66. Based upon the foregoing, BNYM requests an order declaring that the purported 2I foreclosure sale be voided and set aside because NRS 116.3116 et seq. on its face violates 22 BNYM's rights to due process under the Fifth and Fourteenth Amendments to the United States z) Constitution. 24 61. BNYM has been damaged by Defendants' conduct as specif,red herein in an 25 amount to be proven at trial hereof. BNYM has been compelled to retain the undersigned counsel 26 to represent it in this matter and has and will continue to incur attorney's fees and costs. 27 28 -9- THIRD CAUSE OF ACTION (Wrongful Foreclosure against All Defendants) 1 2 3 4 68. 69. BNYM repeats and re-alleges the allegations set forth in Paragraphs 1-67 herein. Defendant LVDG wrongfully purported to purchase BNYM's Property in violation of NRS 116.3116 et seq. and common law. 5 70. The foreclosure sale was wrongful, because the foreclosure itself was contrary to 6 law, in that: 7 (a) NRS 116.3116 et seq. on its face violates BNYM's constitutional rights, in 8 particular those rights to due process secured by the Fifth and Fourteenth 9 Amendments to the United States Constitution which provide that the government 10 shall not deprive any person "of life, liberty, or property, without due process of l1 t2 +r c) À ti tg = l;g law" and is thus void and unenforceable. U.S. Const. amend. V, XIV. (b) BNYM's secured interest in the Property without just compensation, in violation Ë I qiic rErlî t4 ,z (.) =o lzP I ì;-sP IT-¿ sg É I (n rf Ë The foreclosure pursuant to NRS 1 16.31 16 et seq. effected a regulatory taking of 13 of the Fifth Amendment to the United States Constitution which prohibits "private 15 t6 property be[ing] taken without just compensation." U.S. Const. amend. V.; and (c) Any purported notice provided was also inadequate, insuff,tcient, and in violation T7 of BNYM's rights to due process under the Fifth and Fourteenth Amendments to 18 I9 20 2t the United States Constitution. 71. 72. Defendant LVDG is not a bona fide purchaser of the Property. Defendant LVDG's $25,100.00 purchase price for the Property was unconscionable. 22 73. Defendant LVDG's $25,100.00 purchase price for the Property was not 23 commercially reasonable. 24 25 74. Based upon the foregoing, BNYM requests an order declaring that the purported foreclosure sale did not extinguish BNYM's Deed of Trust, which continues as a valid 26 encumbrance against the Property. 27 28 75. Based upon the foregoing, BNYM requests an order declaring that the purported -10- 1 foreclosure sale be voided and set aside because neither LVDG nor Airmotive are bona fide 2 purchasers of the Property. 16. J Based upon the foregoing, BNYM requests an order setting aside the purported 4 foreclosure sale as void because LVDG's $25,100.00 purchase price for the Property was not 5 commercially reasonable. 77. 6 Based upon the foregoing, BNYM requests an order declaring that the purported 7 foreclosure sale be voided and set aside because LVDG's $25,100.00 purchase price for the 8 Property was unconscionable. 78. 9 BNYM has been damaged by Defendants' conduct as specif,red herein, by the l0 11 BNYM has been compelled to retain the undersigned counsel to represent it in this matter and has I2 l¡r qJ potential loss of its security interest in the Property, in an amount to be proven at trial hereof. and will continue to incur attorney's fees and costs. 3 y, I io trlØ.2 Ë I n;î' > iËj;: I3 FOURTH CAUSE OF ACTION t4 ,Zi?rrtrà 15 ¡) -r lS¡3É q./ -l dt ;-1 t6 Øl f (Violation of NRS 116.1113 79. et seq. - Against the HOA and Alessi) BNYM repeats and re-alleges the allegations set forth in Paragraphs 1-78 herein, I Ë and in particular reasserts the allegations set forth in Paragraphs 32-41herein. t7 18 t9 80. The HOA and Alessi wrongfully foreclosed upon the Property in violation of the 81. Given the above-enumerated violations Statute. of the NRS 116.3116 et seq., and 16.31162(IXbXl) and NRS 116.31164(3)(c), BNYM reasserts that the sale of 20 particularly NRS 2l the Property be voided and set aside and requests any and all damages flowing from 22 violations. (Intentional Interference with Contract against All Defendants) 24 26 these FIFTH CAUSE OF ACTION 23 25 1 82. 83. BNYM repeats and re-alleges the allegations BNYM had a valid contract with Borrower set forth in Paragraphs 1-81 herein. as evidenced by the Note and Deed of 27 Trust, which included as part of the benefit of the bargain a first priority secured interest in the 28 Property. -11- I 2 J 84. The HOA, Alessi, LVDG, and Airmotive knew or should have known of the contract between BNYM and the Borrower. 85. The HOA and Alessi knowingly interfered with the contract between BNYM and 4 the Borrower by failing to market, sell, or auction the Property for a commercially reasonable or 5 fair market value, thus evidencing intent to harm BNYM' 6 86. LVDG and Airmotive knowingly interfered with the contract between BNYM and 7 the Borrower by wrongfully obtaining possession of the Property for an unconscionable and 8 commercially unreasonable amount, thus evidencing intent to harm BNYM. 9 g7. LVDG and Airmotive knowingly interfered with the contract between BNYM and 10 l1 z g ol ;^ tst ii I i¡l -3 i;Èii r jö 92þ PÈ BNYM's security interest in the Property. I2 o lrr the Borrower by wrongfully obtaining possession of the Property and attempting to extinguish 88. The HOA, Alessi, LVDG, and Airmotive all lacked justif,rcation for 13 interferences, because of the many constitutional infirmities l4 these inNRS 116.3116 et seq, described within this Complaint, including: 4) t ù*y ¿c-' 15 lfi"ü3 6l-:lij dl t6 UDI Ë (a) NRS 116.3116 et seq. on its face violates BNYM's constitutional rights, in particular those rights to due process secured by the Fifth and Fourteenth t7 Amendments to the United States Constitution which provide that the government 18 shall not deprive any person "of life, liberty, or property, without due process of r9 law" and is thus void and unenforceable. U.S. Const. amend. V, XIV. 20 (b) The foreclosure pursuant to NRS 1 16.31 16 et seq. effected a regulatory taking of 2l BNYM's secured interest in the Property without just compensation, in violation 22 of the United States Constitution. U.S. Const. amend. V.; and 23 (c) Any purported notice provided was also inadequate, insufficient, and in violation 24 of BNYM's rights to due process under the Fifth and Fourteenth Amendments to 25 the United States Constitution. U.S. Const. amend. V, XIV. 26 27 89. BNYM has been damaged by Defendants' conduct as specihed herein, by the potential loss of its security interest in the Property, in an amount to be proven at trial hereof' 28 -t2- 1 BNYM has been compelled to retain the undersigned counsel to represent it in this matter and has 2 and will continue to incur attorney's fees and costs. J SIXTH 4 (Quiet Title 5 6 7 8 9 10 11 l2 1r q) ,2 13 tr É ,z c) d U) ;o I4 lu lo I r28 -,!9 ø.¡ +Þ: !> fä toa l= T 90. 9I. OF'ACTION - Against All Defendants) BNYM repeats and re-alleges the allegations set forth in Paragraphs l-89 herein. For all of the independent reasons cited above in Causes of Action 1-5, the HOA sale did not extinguish the senior Deed of Trust. 92. For all of the independent reasons cited above in Causes of Action 1-5, BNYM requests an order declaring that the purported HOA foreclosure sale did not extinguish BNYM's Deed of Trust, which continues as a valid encumbrance against the Property. 93. For all of the independent reasons cited above in Causes of Action 1-5, BNYM requests an order declaring that the purported HOA foreclosure sale be voided and set aside LVDG and Airmotive because 94. are not bona fide purchasers of the Property. For all of the independent reasons cited above in Causes of Action 1-5, BNYM 15 requests an order setting aside the purported HOA foreclosure sale as void because LVDG's T6 $25,100.00 purchase price for the Property was not commercially reasonable. I7 18 t9 20 95. For all of the independent reasons cited above in Causes of Action l-5, BNYM requests an order declaring that the purported HOA foreclosure sale be voided and set aside because LVDG's $25,100.00 purchase price for the Property was unconscionable. 96. BNYM has been damaged by Defendants' conduct as specified herein, by the 2t potential loss of its security interest in the Property, in an amount to be proven at trial. BNYM 22 has been compelled to retain the undersigned counsel to represent 23 will continue to incur attorney's 24 97. it in this matter and has and fees and costs. Accordingly, BNYM requests that title be quieted, the cloud of title caused by 25 Defendants' alleged interests and purported claims in the Property be removed, and BNYM's 26 Deed of Trust continue as a valid encumbrance against the Property' 27 28 -1 3- 1 NOW, THEREFORE, The Bank of New York Mellon requests a judgment in its favor & 2 against Defendants Royal Highlands Street and Landscape Maintenance Corporation, Alessi J Koenig, LLC, Las Vegas Development Group, LLC, and Airmotive Investments, LLC as follows: 4 A. 7 B. C. 10 11 l¡r :y Hlãq ¡rl ia F I nëis Þr i, ËiEi t2 D. E. F. G. ¡) - lSirc -l Hl A declaration that the Deed of Trust is superior to the interest of LVDG, That the HOA foreclosure sale be declared void and set aside; For consequential damages resulting from the HOA foreclosure sale; For judgment in an amount proven attrial in excess of $200,000; That BNYM be awarded attorney's fees and costs, plus interest accruing thereon, in its favor at the maximum rate allowed by law; and 13 I4 H. That the Court award such other and further relief as it may deem appropriate. 15 Dated: December ,¡jõqåÈ cól r ÞÞør, That title in the Property be quieted in favor of BNYM's Deed of Trust; Airmotive, and any other defendants or claimants; 8 9 extinguished and continues as a valid encumbrance against the Property; 5 6 A declaration in favor of BNYM that the Deed of Trust is not aDt i is t6 Ë T7 18 t9 20 ,2017. SNELL & WILMER L.L.P. By Andrew M. Jacobs Q.{V Bar No. 12787) Blakeley E. Griffrth (NV Bar No. 12386) Holly E. Cheong (NV Bar No. 11936) 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Attorneys for Plaintiff Bank of New York Mellon 2l 22 23 24 25 26 27 28 -t4-
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