United States District Court, D. Nevada
before the court is defendant/counterclaimant SFR Investments
Pool 1, LLC's ("SFR") motion for summary
judgment. (ECF No. 44). Crossdefendant Bank of America, N. A.
("BANA") and plaintiff/counterdefendant Carrington
Mortgage Services, LLC ("CMS") filed responses (ECF
Nos. 50, 53), to which SFR replied (ECF No. 77).
before the court is BANA's motion for summary judgment.
(ECF No. 45). SFR and CMS filed responses (ECF Nos. 52, 53),
to which BANA replied (ECF No. 64).
before the court is defendant Oak Park Homeowners
Association's (the "HOA") motion to dismiss.
(ECF No. 61). CMS filed a response (ECF No. 74), to which the
HOA replied (ECF No. 80).
before the court is SFR's motion to certify question of
law to the Nevada Supreme Court (ECF No. 86), in which the
HOA joined (ECF No. 87). BANA filed a response (ECF No. 89),
to which SFR replied (ECF No. 90).
case involves a dispute over real property located at 909
Veranda View Avenue, Las Vegas, Nevada 89123 (the
September 25, 2008, Samuel and Harry Juergens obtained a loan
in the amount of $171, 311.00 from Taylor, Bean &
Whitaker Mortgage Corp. ("TBW") to purchase the
property, which was secured by a deed of trust recorded on
November 3, 2008. (ECF No. 37). The loan was insured by the
Federal Housing Administration ("FHA"). (ECF No.
April 14, 2010, defendant Nevada Association Services, Inc.
("NAS"), acting on behalf of the HOA, recorded a
notice of delinquent assessment lien. (ECF No. 37). On
December 1, 2010, NAS recorded a notice of default and
election to sell to satisfy the delinquent assessment lien.
(ECF No. 37).
January 4, 2011, BANA's prior counsel Miles, Bauer,
Bergstrom & Winters, LLP ("MBBW") requested a
superpriority demand payoff from NAS. (ECF No. 37). On
January 25, 2011, MBBW received a payoff demand from NAS,
with a full lien payoff in the amount of $3, 281.56. (ECF No.
37). MBBW determined the superpriority portion of the lien to
be $503.10, and tendered that amount to NAS on February 25,
2011, which NAS allegedly rejected. (ECF No. 37).
28, 2011, the deed of trust was assigned to BAC Home Loans
Servicing, LP, fka Countrywide Home Loan Servicing, LP via an
assignment deed recorded August 1, 2011. (ECF No. 37).
August 23, 2012, NAS sent, by certified mail, to BAC (among
others) a notice of trustee's sale. (ECF No. 44-1 at
82-88). On August 27, 2012, NAS recorded a notice of
trustee's sale. (ECF No. 37). On December 28, 2012, SFR
purchased the property at the foreclosure sale for $7,
400.00. (ECF No. 37). A foreclosure deed in favor of SFR was
recorded on January 3, 2013. (ECF No. 37).
September 5, 2014, BANA recorded a request for notice
pursuant to NRS 116.3118. (ECF No. 50 at 4). On December 23,
2014, BANA assigned its beneficial interest under the deed of
trust to CMS via an assignment deed, which was recorded on
January 29, 2015. (ECF Nos. 37, 50).
20, 2015, CMS filed a complaint (ECF No. 1), which was later
amended on February 29, 2016 (ECF No. 37). In the amended
complaint, CMS alleges nine claims for relief: (1) quiet
title/declaratory relief against SFR, the HO A, and NAS; (2)
preliminary injunction against SFR; (3) wrongful/statutorily
defective foreclosure against the HOA and NAS; (4) negligence
against the HOA and NAS; (5) negligence per se
against the HOA and NAS; (6) unjust enrichment against SFR,
the HOA, and NAS; (7) breach of contract against the HOA and
NAS; (8) misrepresentation against the HOA; and (9) breach of
good faith and fair dealing against the HOA and NAS. (ECF No.
August 20, 2015, SFR filed a crossclaim, alleging three
claims for relief: (1) quiet title/declaratory relief against
CMS, BANA, and the Juergens; (2) preliminary and permanent
injunction; and (3) slander of title against CMS and BANA.
(ECF No. 12).
instant motions, SFR moves for summary judgment on the
amended complaint (ECF No. 44), BANA moves for summary
judgment on SFR's slander of title claim (ECF No. 45),
the HOA moves to dismiss the amended complaint (ECF No. 61),
and SFR moves to certify a question of law to the Nevada
Supreme Court (ECF No. 86). The court will address these
motions as it sees fit.
Motion to Dismiss
may dismiss a complaint for "failure to state a claim
upon which relief can be granted." Fed.R.Civ.P.
12(b)(6). A properly pled complaint must provide "[a]
short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands "more than labels and
conclusions" or a "formulaic recitation of the
elements of a cause of action." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level." Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to "state a claim to relief
that is plausible on its face." Iqbal, 556 U.S.
662, 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiffs complaint alleges facts that allow the court to
draw a reasonable inference that the defendant is liable for
the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
"alleged-but not shown-that the pleader is entitled to
relief." Id. (internal quotation marks
omitted). When the allegations in a complaint have not
crossed the line from conceivable to plausible, plaintiffs
claim must be dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court stated, in relevant
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that "there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is "to isolate and dispose of
factually unsupported claims." Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed, 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must "set forth specific facts showing
that there is a genuine issue for trial." Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. "When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case." C.A.R. Tramp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the non-moving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that "the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial." T. W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass 'n, 809 F.2d 626, 631 (9th Cir.
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by producing competent evidence that
shows a genuine issue for trial. See Celotex, 477
U.S. at 324.
summary judgment, a court's function is not to weigh the
evidence and determine the truth, but to determine whether
there is a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
evidence of the nonmovant is "to be believed, and all
justifiable inferences are to be drawn in his favor."
Id. at 255. But if the evidence of the nonmoving
party is merely colorable or is not significantly probative,
summary judgment may be granted. See Id. at 249-50.
Certify Question of Law to the Nevada Supreme Court
Nevada Rules of Appellate Procedure provide that the Supreme
Court of Nevada has the power to answer "questions of
[state] law . . . which may be determinative of the cause
then pending in the certifying court and as to which it
appears to the certifying court there is no controlling
precedent in the decisions of the Supreme Court of
[Nevada]." Nev. R. App. P. 5(a).
Nevada Supreme Court "may answer questions of law
certified  by a federal court when (1) [the] answers to the
certified questions may be determinative of part of the
federal case, (2) there is no clearly controlling Nevada
precedent, and (3) the answers to the certified questions
will help settle important questions of law. See, e.g.,
Hartford Fire Ins. Co. v. Tr. of Const. Indus., 208 P.3d
884, 888 (Nev. 2009).
the question does not impact the merits of a claim pending
before the certifying court, the question should not be
certified to the Supreme Court. See Nev. R. App. P.
5(a) (requiring that certified question be
"determinative"); see also Volvo Cars of N.
Am., Inc. v. Ricci, 137 P.2d 1161, 1164 (Nev. 2006)
(declining to answer certified questions where "answers
to the questions posed  would not 'be
determinative' of any part of the case"). "The
certification procedure is reserved for state law questions
that present significant issues, including those with
important public policy ramifications, and that have not yet
been resolved by the state courts." Kremen v.
Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003).
courts have discretion to certify questions of state law.
Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).
"Resort to certification is not mandatory where state
law is unclear on a particular issue." Carolina Cas.
Ins. Co. v. McGhan, 572 F.Supp.2d 1222, 1225 (D. Nev.
2008) (citing Lehman Bros., 416 U.S. at 390-91).
Generally, "[w]hen a decision turns on applicable state
law and the state's highest court has not adjudicated the
issue, a federal court must make a reasonable determination
of the result the highest state court would reach if it were
deciding the case." Aetna Cas. & Sur. Co. v.
Sheft, 989 F.2d 1105, 1108 (9th Cir. 1993).
a federal court may decline to certify a question where
controlling precedent is available for guidance. Slayman
v. FedEx Ground Package Sys., Inc., 765 F.3d 1033, 1041
(9th Cir. 2014); see also Kehoe v. Aurora Loan Servs.,
LLC, No. 3:10-cv-256-RCJ-RAM; 2010 WL 4286331, at *11
(D. Nev. Oct. 20, 2010) (declining to certify question to
Nevada Supreme Court where statutory language was
sufficiently clear for the court to apply).
a party must show "particularly compelling reasons"
for certification when that party first requests it after
losing on an issue. Complaint of McLinn, 744 F.2d
677, 681 (9th Cir. 1984) ("Ordinarily such a movant
should not be allowed a second chance at victory when, as
here, the district court employed a reasonable interpretation
of state law.").
The HOA's Motion to Dismiss (ECF No 61)
Quiet Title/Declaratory Relief (claim I)
argues that CMS's quiet title claim fails because it
cannot prove good title in itself and the HOA is not a proper
party. (ECF No. 61). The court disagrees.
Nevada law, "[a]n action may be brought by any person
against another who claims an estate or interest in real
property, adverse to the person bringing the action for the
purpose of determining such adverse claim." Nev. Rev.
Stat. § 40.010. "A plea to quiet title does not
require any particular elements, but each party must plead
and prove his or her own claim to the property in question
and a plaintiffs right to relief therefore depends on
superiority of title." Chapman v. Deutsche Bank
Nat'l Trust Co., 302 P.3d 1103, 1106 (Nev. 2013)
(citations and internal quotation marks omitted). Therefore,
for plaintiff to succeed on its quiet title action, it needs
to show that its claim to the property is superior to all
others. See also Breliant v. Preferred Equities
Corp., 918 P.2d 314, 318 (Nev. 1996) ("In a quiet
title action, the burden of proof rests with the plaintiff to
prove good title in himself").
Federal Rule of Civil Procedure 19(a), a party must be joined
as a "required" party in two circumstances: (1)
when "the court cannot accord complete relief among
existing parties" in that party's absence, or (2)
when the absent party "claims an interest relating to
the subject of the action" and resolving the action in
the person's absence may, as a practical matter,
"impair or impede the person's ability to protect
the interest, " or may "leave an existing party
subject to a substantial risk of incurring ...