1 DAVID A. HUBBERT Deputy Assistant Attorney General 2 HERBERT W. LINDER 3 Ohio Bar No. 0065446 Trial Attorney, Tax Division 4 U.S. Department of Justice P.O. Box 310 5 Ben Franklin Station Washington, D.C. 20044 6 Telephone: (202) 598-6193 Email: [email protected] 7 Of Counsel: 8 SUMMER A. JOHNSON Chief, Asset Recovery Unit 9 United States Attorney’s Office District of Nevada 10 Attorneys for the United States 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 UNITED STATES OF AMERICA, ) ) 14 Plaintiff, ) ) Case No. 2:23-cv-1966 15 v ) ) 16 ADAM SACHS, ) PROCLOAK SERIES II, LLC., ) 17 WELLS FARGO BANK, NA., ) MOTION TO EXTEND THE PHH MORTGAGE CORPORATION, ) DEADLINE FOR FILING MOTIONS 18 THE BANK OF NEW YORK, as ) TO AMEND PLEADINGS OR ADD successor Trustee of ) PARTIES 19 CSFB HOME EQUITY MORTGAGE ) TRUST SERIES 2004-1, and ) 20 REPUBLIC SILVER STATE DISPOSAL, INC.,) Defendants. ) 21 _______________________________________ ) 22 MOTION TO EXTEND THE DEADLINE FOR FILING MOTIONS TO AMEND PLEADINGS OR ADD PARTIES 23 This is the United States’ first time to request an extension of the deadline for filing 1 motions to amend pleadings and add parties. This is the United States’ second request of an 2 extension of time in this case. 3 The scheduling order set a deadline to file motions to amend pleadings and add parties 4 of March 18, 2024. The United States files its first motion to extend the deadline for filing 5 motions to amend or add parties for thirty days, until April 17, 2024, as the United States will

6 seek to file a motion to amend its complaint. In support the United States states as follows: 7 1. On November 28, 2023, the United States brought this suit to enforce the federal tax 8 liens upon certain real property under

, 7402 and 7403. One of the 9 properties the United States sought to enforce its liens against was 3090 Cooper Creek Dr., 10 Henderson, Nevada 89074 (“Cooper Creek Property”).

(b) requires all 11 persons having liens upon the property be named as party to the suit. The United States filed 12 this suit upon information and belief that Defendant The Bank of New York as successor trustee 13 to JP Morgan Chase Bank N.A., as trustee for the holders of CSFB Home Equity Mortgage 14 Trust Series 2004-1, Home Equity Mortgage Pass-Through Certificates, Series 2004-1 (Bank of

15 New York Mellon) had an interest in the Cooper Creek Property. See DKT # 34-2. 16 2. After the deadline, on March 19, 2024, the United States filed an extension of time to 17 serve Bank of New York Mellon. See Dkt. #34. The Court granted the United States’ Motion. 18 See Text Order Dkt. # 37. After filing a motion to extend time to serve Bank of New York 19 Mellon and preparing to serve Bank of New York Mellon, the United States determined that its 20 original complaint named Defendant Bank of New York Mellon only as follows: 21 “The Bank of New York as successor trustee to JP Morgan Chase Bank N.A., as trustee for the holders of CSFB Home Equity Mortgage Trust Series 2004-1, Home 22 Equity Mortgage Pass-Through Certificates, Series 2004-1.” 23 1 However, it appears that the complete, full, and accurate name of the proper defendant in 2 regard to Gov. Ex. 2 is as follows: 3 The Bank of New York Mellon Corporation FKA The Bank of New York, as successor trustee to JP Morgan Chase Bank N.A., as trustee for the holders of CSFB Home Equity 4 Mortgage Trust Series 2004-1, Home Equity Mortgage Pass-Through Certificates, Series 2004-1. 5 Out of the abundance of caution, to ensure the proper party is accurately named, to 6 perfect service and to provide clear title for the Cooper Creek Property, the United States 7 believes it needs to amend its complaint to correct the named defendant and/or add the proper 8 party. Thus, under Federal Civil Procedures Rules 21 and 15(c), the United States will seek 9 leave to add the proper party and amend its complaint to reflect the complete, current and 10 accurate name of the defendant “The Bank of New York Mellon Corporation FKA The Bank of 11 New York, as successor trustee to JP Morgan Chase Bank N.A., as trustee for the holders of 12 CSFB Home Equity Mortgage Trust Series 2004-1, Home Equity Mortgage Pass-Through 13 Certificates, Series 2004-1”, as the party that may have an interest in the Cooper Creek Property. 14 See Dkt. #34-2 at 13 of 14. However, the deadline of March 18, 2024, for filing amendments to 15 pleadings has passed and the United States seeks an extension of this deadline. 16 3. As required by Local Rule 1A 6-1.(a), the United States asserts that missing the filing 17 deadline was due to excusable neglect. 18 The Court in Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507

, 395 (1993) set forth four equitable factors that are weighed as to the discretion of the 20 district court. See Pincay v. Andrews,

(9th Cir.,2004). The four factors are 21 (1) the danger of prejudice to the party; (2) length of the delay and its potential impact on 22 judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable 23 control of the movant; (4) and whether the movant acted in good faith. Pioneer Inv. Services 1 Co., 507 U.S. at 395. 2 One (1); there is no prejudice to Bank of New York Mellon or the other parties. 3 Defendants Adam Sachs, Procloak, and the United States have entered into a stipulation that 4 resolves most if not all the contested issues in this case. See ECF #24. Wells Fargo and PHH 5 Mortgage have appeared and entered into stipulations with the United States resolving their

6 respective lien priorities at to the properties at issue in this case. See ECF ##30 and 31. The 7 Clerk of Court has entered a default against Defendant Republic Silver State Disposal, Inc. See 8 ECF #20. Defendant Bank of New York Mellon is not prejudiced because if it has a lien 9 interest in the Cooper Creek Property it should be represented in regard to its respective lien 10 priority. The properties as issue have not been sold and no sales proceeds have been 11 distributed. The United States is not adding any new factual allegations to its Amended 12 Complaint but merely correcting one defendant’s name. Thus, no parties that are in the case 13 will be prejudiced by correcting the proper party name of Defendant New York Mellon. Thus, 14 no parties that are in the case will be prejudiced by an extension. Factor one weighs in favor of

15 the United States. 16 Two (2); the length of the delay in filing this motion is 10 days and it will not impact or 17 delay the case. Defendants Adam Sachs, Procloak, Wells Fargo and PHH Mortgage and the 18 United States have entered into stipulations resolving most of the contested issues between the 19 parties including respective lien priorities. See ECF ##24, 30 and 31. A receiver has been 20 appointed to sell the Cooper Creek Property and the property located at 309 Rosegate, 21 Henderson, NV. See DKT. #36. The delay in filing the motion is slight, not holding up the 22 case. Factor two weighs in favor of the United States. Three (3); the reason for the delay is that 23 counsel for the United States simply failed to provide the complete full name of the defendant. 1 Counsel for the United States was actively trying to make Bank of New York Mellon aware of 2 the case and determine if its lien had been paid. However, the filing of the motion was within 3 control of Counsel for the United States. The United States believes Factor 3 would be neutral 4 or weigh against the United States. 5 Fourth, counsel for the United States has not acted in bad faith or gamesmanship for

6 the delay in filing this motion. The lien interest or deed of trust at issue is the same. See Dkt. 7 34-2. The actual defendant is the same as The Bank of New York Mellon is formally known 8 as, FKA, The Bank of New York. The United States’ Complaint did not provide the complete 9 and current name of the defendant Bank of New York Mellon. Plaintiff’s failure to provide the 10 complete and current name is a simple misnomer. 11 Taken as a whole, the United States believes the factors weigh in favor of establishing 12 excusable neglect on behalf of the United States. 13 4. The United States has conferred with counsel for defendants Adam Sachs, Procloak 14 Series II., LLC, Wells Fargo Bank, N.A., and PHH Mortgage Corporation, and they are not

15 opposed to the relief sought by this motion. 16 17 18 19 20 21 22 23 1 Based upon the foregoing, the United States requests this court to extend the deadline 2 || for filing motions to amend pleadings or add parties for thirty (30) days from March 18, 2024, 3 || to April 17, 2024. 4 DAVID A. HUBBERT 5 Deputy Assistant Attorney General

6 /s/ Herbert W. Linder HERBERT W. LINDER 7 Attorney, Tax Division U.S. Department of Justice 8 717 N. Harwood St., Suite 400 9 Dallas, Texas 75201 Phone: (202) 598-6193 10 Fax: (214) 880-9741 [email protected] i Attorneys for the United States 2 ATTORNEYS FOR UNITED STATES

13 14 15 16 “IT IS SO ORDERED: 17 ig Frew UNITED STATES DISTRICT JUDGE 19 DATED. 3/28/2024 > 20 21 22 23

-6-

1 CERTIFICATE OF SERVICE 2 I certify that on March 27, 2024, I electronically filed the foregoing Motion using the 3 CM/ECF system, which will send notification of such filing to the following registered users 4 currently in this case: 5 Shawn R. Perez, Esq. Law Offices of Shawn R. Perez 6 [email protected] Counsel for Defendant Adam L. Sachs and Procloak Series II, LLC 7 Jeffrey S. Allison 8 HOUSER LLP 9970 Research Drive 9 Irvine, California 92618 Email: [email protected] 10 Attorneys for Defendant PHH Mortgage Corp.

11 Kristin A. Schuler-Hintz McCarthy Holthus, LLP 12 9510 West Sahara, Suite 200 Las Vegas, NV 89117 13 (702) 685-0329 Telephone Email: [email protected] 14 Attorney for Wells Fargo Bank NA

15 /s/Herbert W. Linder HERBERT W. LINDER 16 Trial Attorney United States Department of Justice, Tax Division 17

18

19 20 21 22 23 1 DAVID A. HUBBERT Deputy Assistant Attorney General 2 HERBERT W. LINDER 3 Ohio Bar No. 0065446 Trial Attorney, Tax Division 4 U.S. Department of Justice P.O. Box 310 5 Ben Franklin Station Washington, D.C. 20044 6 Telephone: (202) 598-6193 Email: [email protected] 7

8 Of Counsel: SUMMER A. JOHNSON 9 Chief, Asset Recovery Unit United States Attorney’s Office 10 District of Nevada

11 Attorneys for the United States

12 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 13 UNITED STATES OF AMERICA, ) 14 ) Plaintiff, ) 15 ) Case No. 2:23-cv-1966 v ) 16 ) ADAM SACHS, ) 17 PROCLOAK SERIES II, LLC., ) WELLS FARGO BANK, NA., ) 18 PHH MORTGAGE CORPORATION, ) ORDER EXTENDING THE THE BANK OF NEW YORK, as ) DEADLINE TO FILE MOTIONS TO 19 successor Trustee of ) AMEND PLEADINGS OR ADD CSFB HOME EQUITY MORTGAGE ) PARTIES 20 TRUST SERIES 2004-1, and ) REPUBLIC SILVER STATE DISPOSAL, INC.,) 21 ) Defendants. ) 22 _______________________________________ )

23 ORDER GRANTING UNITED STATES’ MOTION TO EXTEND THE DEADLINE TO FILE MOTIONS TO AMEND PLEADINGS OR ADD PARTIES 1 Pending before the Court is the United States’ Motion to Extend the Deadline to File 2 Motions to Amend Pleading or add Parties. Good cause having been shown, the Motion is 3 GRANTED. 4 Accordingly, the deadline for filing motions to amend pleadings or add parties is 5 extended for 30 days until April 17, 2024. 6

7

8

9 “IT IS SO ORDERED: 10

11 UNITED STATES DISTRICT JUDGE 12 DATED:________________” 13 14 15 16 17 18 19 20 21 22 23