United States District Court, D. Nevada
before the court is defendant/counterclaimant Alex
Berezovsky's (“Berezovsky”) motion for
summary judgment. (ECF No. 44). Plaintiff/counterdefendant
Nationstar Mortgage, LLC (“Nationstar”) filed a
response (ECF No. 55), to which Berezovsky replied (ECF No.
before the court is plaintiff Nationstar's motion for
summary judgment. (ECF No. 46). Defendant Tanglewood
Homeowners Association (the “HOA”) filed a
response (ECF No. 53), as did Berezovsky (ECF No. 54). No
reply was filed, and the period to do so has since passed.
before the court is the HOA's motion for summary
judgment. (ECF No. 48). Berezovsky filed a joinder to the
motion. (ECF No. 50). Nationstar filed a response (ECF No.
56), to which the HOA replied (ECF No. 62).
case involves a dispute over property that was subject to a
homeowners' association's superpriority lien for
delinquent assessment fees. On December 29, 2005, Curtis
Barschdorf and Gayle Ann Barschdorf (the
“borrowers”) obtained a $230, 800.00 loan from
Countrywide Bank, N.A. (“Countrywide”) to
purchase the property located at 6529 Hartwood Road, Las
Vegas, Nevada 89108 (the “property”). (ECF No. 1
loan was secured by a first deed of trust encumbering the
property, which was recorded on November 22, 2006. (ECF No.
46-1 at 2-18). Under the first deed of trust, Mortgage
Electronic Registration Systems, Inc. (“MERS”)
was named nominee-beneficiary for Countrywide. (ECF No. 46-1
29, 2010, Hampton & Hampton (“H&H”), as
the HOA's authorized trustee, recorded a notice of
delinquent assessment lien on behalf of the HOA. (ECF No.
46-1 at 23-24). The notice asserted that the borrowers owed
$1, 256.00 in fees. (ECF No. 46-1 at 23-24). On January 29,
2013, H&H mailed (by certified mail, return receipt
requested) a notice of delinquent assessment lien to the
borrowers. (ECF No. 44-1 at 16-25). The notice asserted that
the borrowers owed $2, 120.00 in fees. (ECF No. 44-1 at
February 28, 2013, Bank of America, N.A.
(“BANA”), successor by merger to BAC Home Loans
Servicing, LP, fka Countrywide Home Loans Servicing, LP
(“BAC”), assigned the deed of trust to
Nationstar. (ECF No. 46-1 at 20-21).
March 15, 2013, the HOA recorded a notice of default and
election to sell under the HOA lien. (ECF No. 44-2 at 2-3).
The notice of default asserted that the borrowers owed $2,
933.00 in fees. (ECF No. 44-2 at 2-3). On March 20, 2013,
H&H mailed a copy of the notice of default to the
borrowers (by certified mail, return receipt requested) and
to the beneficiaries of record, which included MERS and BAC
(by first class mail). (ECF No. 44-2 at 5-12).
April 1, 2013, the corporation assignment of deed of trust
was recorded, wherein Nationstar obtained all beneficial
interest under the deed of trust securing the property from
BANA. (ECF No 46-1 at 20-21).
8, 2013, Nationstar recorded a notice of default and election
to sell against the property. (ECF No. 46-1 at 78-83). The
notice of default asserted that the borrowers owed $268,
170.37. (ECF No. 46-1 at 78-83).
August 20, 2013, H&H mailed a notice of trustee's
sale to the borrowers (by certified mail, return receipt
requested) and to the beneficiaries of record, which included
MERS, BAC, and Nationstar. (ECF No. 44-2 at 14-22). The
notice asserted that the “sale will be made . . . to
pay the remaining principal sum due . . . plus fees and costs
of the Trustee, to wit: $4, 112.00 (Accrued interest and
additional advances, if any, will increase this figure prior
to sale.).” (ECF No. 44-2 at 14-22). On August 22,
2013, H&H recorded the notice of trustee's sale. (ECF
No. 44-2 at 24-26).
October 9, 2013, H&H held a foreclosure sale, and
Borozovsky purchased the property for $5, 100.00. (ECF No.
44-2 at 28-31). On October 22, 2013, H&H recorded the
trustee's deed upon sale. (ECF No. 44-2 at 28-31).
filed the original complaint on May 13, 2015, asserting four
claims against Berezovsky and the HOA (collectively,
“defendants”): (1) declaratory relief/quiet
title; (2) unjust enrichment; (3) injunctive relief against
Berezovsky; and (4) violation of procedural due process. (ECF
No. 1). Plaintiff contends that the HOA foreclosure sale
violated NRS 116.31162(6), that the sale should be set aside
as it was commercially unreasonable, and that Nevada's
statutory scheme providing superpriority liens to
homeowner's associations is violative of procedural due
process under the Constitution. (ECF No. 1).
filed a motion to dismiss on June 17, 2015, seeking dismissal
of plaintiff's claims. (ECF No. 7). This court dismissed
Nationstar's claims for unjust enrichment and violation
of procedural due process pursuant to an unopposed motion to
dismiss. (ECF No. 47).
October 2, 2015, Berezovsky filed an answer and verified
counterclaim, asserting claims of quiet title and declaratory
relief against the borrowers, Nationstar, and Richland
Holdings, Inc. d/b/a Acctcorp of Southern Nevada. (ECF No.
instant motions, Berezovsky, the HOA, and Nationstar all seek
summary judgment declaring the rightful holder of title to
and the HOA assert that summary judgment in their
favor is proper because the foreclosure sale extinguished
Nationstar's deed of trust pursuant to NRS 116.3116 and
SFR Invs. Pool 1, LLC v. U.S. Bank, N.A., 334 P.3d
408 (Nev. 2014) (“SFR Investments”) and
because Nationstar has not met the fraud, unfairness, or
oppression requirement to set aside a foreclosure sale as
outlined in Shadow Wood Homeowners Assoc. v. N.Y. Cmty.
Bancorp., Inc., 366 P.3d 1105, 1112 (Nev. 2016)
(“Shadow Wood”). (ECF Nos. 44, 48).
contends that summary judgment in its favor is proper because
the foreclosure sale was commercially unreasonable, the
foreclosure sale is void because the trustee violated NRS
116.3116(6), SFR Investments should not be applied
retroactively, and the foreclosure sale is invalid because
the notice scheme of NRS Chapter 116 is facially
unconstitutional. (ECF No. 46).
court will address each in turn.
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. Transp.
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).
Nonmovant's evidence 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.
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 plaintiff's 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 claimant 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.”).
Nev. Rev. Stat. ...