SFR Investments Pool 1, LLC v. PHH Mortgage Corporation
(2:22-cv-00507)
District Court, D. Nevada
MAR 22, 2022 | REPUBLISHED BY LIT: APR 6, 2022
PHH MORTGAGE CORPORATION MOTION TO DISMISS GRANTED
“Acceleration is ‘discretionary’ per Nevada Supreme Court opinion”
LIT last checked the docket on Nov 1, 2023 – see docket update below article.
Submission of PROPOSED ORDER on 42 Motion to Dismiss by Defendant PHH Mortgage Corporation.. (Garabedian, Jory) (Entered: 10/24/2023)
Motion Hearing held on 9/5/2023 before Judge Richard F. Boulware, II. Crtrm Administrator: D Smith; Pla Counsel: Karen Hanks; Def Counsel: Jory Garabedian; Court Reporter: Patricia Ganci; Time of Hearing: 11:54 a.m. – 12:05 p.m; Courtroom: 7C
The Court makes preliminary statements and hears representations from parties regarding Defendant PHH Mortgage Corporation’s 41 MOTION for Clarification of Order and 42 MOTION to Dismiss.
The Court finds that the Nevada Supreme Court’s recent decision in LV Debt Collect, LLC v. Bank of New York Mellon, No. 84174, 2023 WL 5490314 (Nev. Aug. 24, 2023) is controlling for this case.
The Nevada Supreme Court held that where, as here, the deed of trust contains a discretionary acceleration clause, a recorded Notice of Default cannot make the loan “wholly due” for purposes of NRS § 106.240.
Id. at *3.
Because Paragraph 22 of the 2007 Deed of Trust is a discretionary acceleration clause, (ECF No. 42-1 at 20), the December 3, 2010 Notice of Default could not trigger the 10-year timeframe under NRS § 106.240.
The Court further finds that the October 14, 2010, “Notice of Intent to Accelerate” letter (ECF No. 47-1) did not make the loan “wholly due” under NRS § 106.240 as unrecorded notices are also insufficient to trigger NRS § 106.240.
See, e.g., Daisy Tr. v. Fed. Nat’l Mortg. Ass’n, No. 21-15595, 2022 WL 874634, at *2 (9th Cir. Mar. 24, 2022);
LV Debt, 2023 WL 5490314, at *3
(“the plain language of NRS 104.260 states that a debt ‘becomes wholly due’ only ‘according to’ either of two things: (1) the ‘terms thereof,’ referring to the mortgage or deed of trust, or (2) ‘any recorded written extension thereof.'”).
For the foregoing reasons as well as the reasons stated on the record and incorporated by reference here, IT IS ORDERED that 42 MOTION to Dismiss by Defendant PHH Mortgage Corporation is GRANTED.
IT IS FURTHER ORDERED that Defendant PHH Mortgage Corporation has leave to submit a proposed order relating to the title of the property to be filed with the County Recorder or Assessor.
The Clerk of the Court is instructed to close the case accordingly.
(Copies have been distributed pursuant to the NEF – DRS) (Entered: 09/08/2023)
United States District Court
District of Nevada (Las Vegas)
CIVIL DOCKET FOR CASE #: 2:22-cv-00507-RFB-EJY
| SFR Investments Pool 1, LLC v. PHH Mortgage Corporation Assigned to: Judge Richard F. Boulware, II Referred to: Magistrate Judge Elayna J. Youchah
Cause: 28:1332 Diversity-(Citizenship) |
Date Filed: 03/22/2022 Date Terminated: 09/05/2023 Jury Demand: None Nature of Suit: 290 Real Property: Other Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 04/14/2023 | 52 | REPLY to Response to 42 Motion to Dismiss by Defendant PHH Mortgage Corporation. (Miller, Christina) (Entered: 04/14/2023) |
| 08/01/2023 | 53 | MINUTE ORDER IN CHAMBERS of the Honorable Judge Richard F. Boulware, II on 8/1/2023.Before the Court for Consideration are the following motions: 41 MOTION for Clarification of Order re 20 Order and 42 MOTION to DismissA Motion Hearing is set for 9/5/2023 at 10:15 AM in LV Courtroom 7C before Judge Richard F. Boulware II.(no image attached) (Copies have been distributed pursuant to the NEF – DRS) (Entered: 08/01/2023) |
| 08/21/2023 | 54 | NOTICE of Appearance by attorney Stephanie A. Garabedian on behalf of Defendant PHH Mortgage Corporation. (Garabedian, Stephanie) (Entered: 08/21/2023) |
| 08/31/2023 | 55 | NOTICE of Appearance by attorney Jory C. Garabedian on behalf of Defendant PHH Mortgage Corporation. (Garabedian, Jory) (Entered: 08/31/2023) |
| 09/01/2023 | 56 | MOTION for Leave to File Document re 42 Motion to Dismiss by Defendant PHH Mortgage Corporation. Responses due by 9/15/2023. (Attachments: # 1 Exhibit A)(Garabedian, Jory) (dispositive) (Entered: 09/01/2023) |
| 09/05/2023 | 57 | MINUTE ORDER IN CHAMBERS of the Honorable Judge Richard F. Boulware, II on 9/5/2023.Due to an unforeseen conflict, the Motion Hearing set for today, 9/5/2023 at 10:15 a.m. must be RESET to 11:30 a.m. in LV Courtroom 7C before Judge Richard F. Boulware II.
(no image attached) (Copies have been distributed pursuant to the NEF – DRS) (Entered: 09/05/2023) |
| 09/05/2023 | 58 | MINUTES OF PROCEEDINGS – Motion Hearing held on 9/5/2023 before Judge Richard F. Boulware, II. Crtrm Administrator: D Smith; Pla Counsel: Karen Hanks; Def Counsel: Jory Garabedian; Court Reporter: Patricia Ganci; Time of Hearing: 11:54 a.m. – 12:05 p.m; Courtroom: 7CThe Court makes preliminary statements and hears representations from parties regarding Defendant PHH Mortgage Corporation’s 41 MOTION for Clarification of Order and 42 MOTION to Dismiss.
The Court finds that the Nevada Supreme Court’s recent decision in LV Debt Collect, LLC v. Bank of New York Mellon, No. 84174, 2023 WL 5490314 (Nev. Aug. 24, 2023) is controlling for this case. The Nevada Supreme Court held that where, as here, the deed of trust contains a discretionary acceleration clause, a recorded Notice of Default cannot make the loan “wholly due” for purposes of NRS § 106.240. Id. at *3. Because Paragraph 22 of the 2007 Deed of Trust is a discretionary acceleration clause, (ECF No. 42-1 at 20), the December 3, 2010 Notice of Default could not trigger the 10-year timeframe under NRS § 106.240. The Court further finds that the October 14, 2010, “Notice of Intent to Accelerate” letter (ECF No. 47-1) did not make the loan “wholly due” under NRS § 106.240 as unrecorded notices are also insufficient to trigger NRS § 106.240. See, e.g., Daisy Tr. v. Fed. Nat’l Mortg. Ass’n, No. 21-15595, 2022 WL 874634, at *2 (9th Cir. Mar. 24, 2022); LV Debt, 2023 WL 5490314, at *3 (“the plain language of NRS 104.260 states that a debt ‘becomes wholly due’ only ‘according to’ either of two things: (1) the ‘terms thereof,’ referring to the mortgage or deed of trust, or (2) ‘any recorded written extension thereof.'”). For the foregoing reasons as well as the reasons stated on the record and incorporated by reference here, IT IS ORDERED that 42 MOTION to Dismiss by Defendant PHH Mortgage Corporation is GRANTED. IT IS FURTHER ORDERED that Defendant PHH Mortgage Corporation has leave to submit a proposed order relating to the title of the property to be filed with the County Recorder or Assessor. The Clerk of the Court is instructed to close the case accordingly. (Copies have been distributed pursuant to the NEF – DRS) (Entered: 09/08/2023) |
| 09/28/2023 | 59 | TRANSCRIPT of Proceedings, 58 Order on Motion, Order on Motion to Dismiss, Order on Motion for Leave to File Excess Pages, Motion Hearing, held on 9/5/2023, before Judge Richard F. Boulware, II. Court Reporter: Patricia Ganci, PG@nvd.uscourts.gov. Any Redaction Request is due by 10/19/2023. Release of the Transcript Restriction is set for 12/27/2023. Before release date, the transcript may be viewed at the court public terminal or purchased through the court reporter. After release date, it may be obtained through the court reporter or PACER.THIS TRANSCRIPT MUST NOT BE ATTACHED AS AN EXHIBIT OR MADE PART OF AN APPENDIX. See Local Rule IA 10-3.(b). (PG) (Entered: 09/28/2023) |
| 10/24/2023 | 60 | Submission of PROPOSED ORDER on 42 Motion to Dismiss by Defendant PHH Mortgage Corporation.. (Garabedian, Jory) (Entered: 10/24/2023) |
| PACER Service Center | |||
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| Transaction Receipt | |||
| 11/01/2023 11:59:25 |
TRO Granted, Apr. 29, 2022
LIT last checked the docket on Jun 26, 2022 – see docket update below article.
TRO Application / Complaint
4575 Dean Martin Dr UNIT 812, Las Vegas, NV 89103
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United States District Court
District of Nevada (Las Vegas)
CIVIL DOCKET FOR CASE #: 2:22-cv-00507-RFB-EJY
Create an Alert for This Case on RECAP
| SFR Investments Pool 1, LLC v. PHH Mortgage Corporation Assigned to: Judge Richard F. Boulware, II Referred to: Magistrate Judge Elayna J. Youchah
Cause: 28:1332 Diversity-(Citizenship) |
Date Filed: 03/22/2022 Jury Demand: None Nature of Suit: 290 Real Property: Other Jurisdiction: Diversity |
| Plaintiff | ||
| SFR Investments Pool 1, LLC | represented by | Karen L. Hanks Hanks Law Group 7625 Dean Martin Drive Ste 110 Las Vegas, NV 89139 702-758-8434 Fax: (725) 239-3415 Email: karen@hankslg.com LEAD ATTORNEY ATTORNEY TO BE NOTICEDChantel Marie Schimming Hanks Law Group 7625 Dean Martin Drive, Ste. 110 Las Vegas, NV 89139 (702) 758-8434 Fax: (725) 239-3415 Email: chantel@hankslg.com ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| PHH Mortgage Corporation | represented by | Christina Miller Wright, Finlay & Zak 7785 W. Sahara Ave., Ste. 200 Las Vegas, NV 89117 702-475-7964 Fax: 702-946-1345 Email: cmiller@wrightlegal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED |
| Date Filed | # | Docket Text |
|---|---|---|
| 03/22/2022 | 1 | PETITION FOR REMOVAL from District Court, Clark County, Nevada, Case Number A-22-849374-C, (Filing fee $ 402 receipt number 0978-6836901) by PHH Mortgage Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Civil Cover Sheet) (Miller, Christina)NOTICE of Certificate of Interested Parties requirement: Under Local Rule 7.1-1, a party must immediately file its disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court. (Entered: 03/22/2022) |
| 03/22/2022 | 2 | CERTIFICATE of Interested Parties by PHH Mortgage Corporation that identifies all parties that have an interest in the outcome of this case. Corporate Parent Ocwen Financial Corporation, Other Affiliate Ocwen Mortgage Servicing, Inc., Other Affiliate Ocwen Loan Servicing, LLC for PHH Mortgage Corporation added. (Miller, Christina) (Entered: 03/22/2022) |
| 03/22/2022 | 3 | MINUTE ORDER IN CHAMBERS of the Honorable Judge Richard F. Boulware, II on 3/22/2022. Statement regarding removed action is due by 4/6/2022. Joint Status Report regarding removed action is due by 4/21/2022. (Copies have been distributed pursuant to the NEF – YAW) (Entered: 03/22/2022) |
| 03/22/2022 | 4 | STANDING ORDER. This case has been assigned to the Honorable Judge Richard F. Boulware, II. Judge Boulware’s Chambers Practices, which are posted on the U.S. District Court, District of Nevada public website, may also be accessed directly via this hyperlink: www.nvd.uscourts.gov. (Copies have been distributed pursuant to the NEF – YAW) (Entered: 03/22/2022) |
| 03/23/2022 | 5 | Emergency MOTION for Temporary Restraining Order by Plaintiff SFR Investments Pool 1, LLC. (Attachments: # 1 Exhibit Deed of Trust, # 2 Exhibit Notice of Default, # 3 Exhibit Assignment, # 4 Exhibit Assignment, # 5 Exhibit Quitclaim Deed, # 6 Exhibit Notice of Default, # 7 Exhibit Notice of Sale) (Hanks, Karen) (Entered: 03/23/2022) |
| 03/23/2022 | 6 | Emergency MOTION for Preliminary Injunction by Plaintiff SFR Investments Pool 1, LLC. Responses due by 4/6/2022. (Attachments: # 1 Exhibit Deed of Trust, # 2 Exhibit Notice of Default, # 3 Exhibit Assignment, # 4 Exhibit Assignment, # 5 Exhibit Quitclaim Deed, # 6 Exhibit Notice of Default, # 7 Exhibit Notice of Sale) (Hanks, Karen) (Entered: 03/23/2022) |
| 03/24/2022 | 7 | ORDER granting 5 Motion for Temporary Restraining Order. IT IS FURTHER ORDERED that Defendant shall file any response to Plaintiff’s 6 Application for Preliminary Injunction on or before April 1, 2022. Plaintiffs will have up to and including April 5, 2022 to reply to Defendant’s response. The Court will provide details regarding a Preliminary Injunction hearing at a later date. Signed by Judge Richard F. Boulware, II on 3/24/2022. (Copies have been distributed pursuant to the NEF – HAM) (Entered: 03/24/2022) |
| 03/25/2022 | 8 | CERTIFICATE of Interested Parties by SFR Investments Pool 1, LLC. |
| 03/29/2022 | 9 | STIPULATION FOR EXTENSION OF TIME (First Request) TO RESPOND TO THE COMPLAINT re 1 Petition for Removal,, by Defendant PHH Mortgage Corporation. (Miller, Christina) (Entered: 03/29/2022) |
| 03/29/2022 | 10 |
ORDER Granting 9 Stipulation for Extension of Time (First Request) re 1 Petition for Removal. PHH Mortgage Corporation response due 4/15/2022. Signed by Magistrate Judge Elayna J. Youchah on 3/29/2022. (Copies have been distributed pursuant to the NEF – YAW) (Entered: 03/30/2022) |
| 04/01/2022 | 11 | RESPONSE to 6 Motion for Preliminary Injunction, by Defendant PHH Mortgage Corporation. Replies due by 4/8/2022. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7) (Miller, Christina) (Entered: 04/01/2022) |
| 04/01/2022 | 12 | RESPONSE to 5 Motion for TRO, by Defendant PHH Mortgage Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7) (Miller, Christina) (Entered: 04/01/2022) |
| 04/05/2022 | 13 | First STIPULATION FOR EXTENSION OF TIME (First Request) re SFR’s Reply in Support of Motion for Preliminary Injunction by Plaintiff SFR Investments Pool 1, LLC. (Hanks, Karen) (Entered: 04/05/2022) |
United States District Court
District of Nevada (Las Vegas)
CIVIL DOCKET FOR CASE #: 2:22-cv-00507-RFB-EJY
Create an Alert for This Case on RECAP
| SFR Investments Pool 1, LLC v. PHH Mortgage Corporation Assigned to: Judge Richard F. Boulware, II Referred to: Magistrate Judge Elayna J. Youchah
Cause: 28:1332 Diversity-(Citizenship) |
Date Filed: 03/22/2022 Jury Demand: None Nature of Suit: 290 Real Property: Other Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 06/15/2022 | 24 | ORDER granting 23 Stipulation for Extension of Time (First Request) re Discovery and Dispositive Motion Deadline. Discovery due by 7/20/2022. Motions due by 8/19/2022. Signed by Magistrate Judge Elayna J. Youchah on 6/15/2022. (Copies have been distributed pursuant to the NEF – YAW) (Entered: 06/15/2022) |
| 06/15/2022 | 25 | NOTICE PURSUANT TO LOCAL RULE IB 2-2: In accordance with 28 USC § 636(c) and FRCP 73, the parties in this action are provided with a link to the “AO 85 Notice of Availability, Consent, and Order of Reference – Exercise of Jurisdiction by a U.S. Magistrate Judge” form on the Court’s website – www.nvd.uscourts.gov. AO 85 Consent forms should NOT be electronically filed. Upon consent of all parties, counsel are advised to manually file the form with the Clerk’s Office. (A copy of form AO 85 has been mailed to parties not receiving electronic service.) (no image attached) (YAW) (Entered: 06/15/2022) |
| PACER Service Center | |||
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| Transaction Receipt | |||
| 06/26/2022 11:55:19 |
