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Abet Justice LLC v. First America Trustee Servicing Solutions, LLC

United States District Court, D. Nevada

February 22, 2017

ABET JUSTICE LLC, et al., Plaintiff(s),
v.
FIRST AMERICA TRUSTEE SERVICING SOLUTIONS, LLC, et al., Defendant(s).

          ORDER

         Presently before the court is counterdefendant Sunridge Heights's (the “HOA”) motion for summary judgment. (ECF No. 106). Defendant/counterclaimant Bank of New York Mellon fka Bank of New York as trustee for the certificate-holders of CWMBS, Inc., CHL mortgage pass-through trust 2007-J2 mortgage pass-through certificates, series 2007-J2 (“BNYM”) filed a response (ECF No. 125), to which the HOA replied (ECF No. 127).

         Also before the court is a motion for summary judgment filed by defendants/counterclaimants BNYM, First America Trustee Servicing Solutions, LLC's (“FATSS”), and Residential Credit Solutions, Inc. (“RCS” and collectively, with FATSS and BNYM, as “defendants”). (ECF No. 107). The HOA filed a response (ECF No. 124), to which defendants replied (ECF No. 128).

         Also before the court is pro se plaintiff/counterdefendant Guetatchew Fikrou's (“Fikrou”) motion for summary judgment. (ECF No. 118). BNYM filed a response. (ECF No. 122). Fikrou has yet to reply, and the period to do so has since passed.

         I. Facts

         This case involves a dispute over real property located at 2138 Montana Pine Drive, Henderson, Nevada 89052 (the “property”).

         On March 20, 2007, Shannon Moore obtained a loan from Countrywide Home Loans, Inc. Mortgage in the amount of $556, 000.00 to purchase the property, which was secured by a deed of trust recorded on April 26, 2007.

         The deed was assigned to BNYM via an assignment of deed of trust recorded on November 9, 2010.[1] An assignment of deed of trust was recorded on March 7, 2014, clarifying the assignment to BNYM.

         On September 11, 2013, defendant Nevada Association Services, Inc. (“NAS”), acting on behalf of the HOA, recorded a notice of delinquent assessment lien, stating an amount due of $4, 062.92. (ECF No. 49 at 51). On October 28, 2013, NAS recorded a notice of default and election to sell to satisfy the delinquent assessment lien, stating an amount due of $4, 988.64. (ECF No. 49 at 53).

         On March 17, 2014, NAS recorded a notice of trustee's sale, stating an amount due of $5, 867.36. (ECF No. 49 at 57). BNYM did not bid or pay the noticed amount. On April 11, 2014, Abet Justice, LLC (“Abet”) purchased the property at the foreclosure sale for $42, 100.00. A trustee's deed upon sale in favor of Abet was recorded on April 14, 2014. (ECF No. 49 at 59). Fikrou asserts that he is the owner of Abet. (ECF No. 1).

         On June 11, 2014, Fikrou and Abet filed the underlying complaint against defendants, alleging two causes of action: (1) quiet title; and (2) declaratory relief. (ECF No. 1). Abet's claims were dismissed with prejudice on September 26, 2016. (ECF No. 132).

         On February 9, 2015, defendants filed an answer. (ECF No. 33). On April 29, 2015, defendants filed an amended answer and counterclaim, alleging six causes of action: (1) quiet title/declaratory judgment; (2) preliminary and permanent injunction against Fikrou; (3) wrongful foreclosure against NAS and the HOA; (4) negligence against the HOA and NAS; (5) negligence per se against the HOA and NAS; and (6) breach of the covenant of good faith and fair dealing against the HOA. (ECF No. 49). On March 23, 2016, the court dismissed BNYM's counterclaims (2) through (6). (ECF No. 104).

         In the instant motions, the HOA, defendants, and Fikrou have all filed motions for summary judgment. The court will address each as it sees fit.

         II. Legal Standard

         The 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).

         For 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.

         In 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).

         By 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 nonmoving 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).

         If the 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. 1987).

         In 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.

         At 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.

         III. Discussion

         As an initial matter, the court acknowledges that Fikrou's pleadings were filed pro se and are therefore held to less stringent standards. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”) (internal quotation marks and citation omitted). However, “pro se litigants in an ordinary civil case should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).

         Under 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) (internal quotation marks and citations 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.”).

         A. The HOA's Motion for Summary Judgment (ECF No. 106)

         In its motion, the HOA moves for summary judgment of the quiet title claim in favor of Fikrou. (ECF No. 106). The HOA asserts that Abet and Fikrou purchased the property at the foreclosure sale and ...


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