United States District Court, D. Nevada
M. Navarro, Chief Judge.
before the Court is the Motion for Summary Judgment, (ECF No.
37), filed by Intervenors Federal National Mortgage
Association (“Fannie Mae”) and Federal Housing
Finance Agency (“FHFA”) (collectively
Nevada Sand Castles, LLC (“Plaintiff”) filed a
Response, (ECF No. 49), and Intervenors filed a Reply, (ECF
present action involves the interplay between Nevada Revised
Statutes § 116.3116 and 12 U.S.C. § 4617 as it
relates to the parties' interests in real property
located at 5710 E. Tropicana Avenue, #1029, Las Vegas,
Nevada, 89122 (the “Property”). On September 20,
2006, Laura Forman (“Forman”) obtained a loan
(the “Loan”) in the amount of $89, 430 from
lender Bank of America, N.A. (“BANA”) that was
secured by a Deed of Trust on the Property. (Deed of Trust,
Ex. A to MSJ, ECF No. 37-1). Fannie Mae purchased the Loan on
October 1, 2006, and has owned it ever since. (See
Curcio Decl., Ex. B to MSJ ¶¶ 4, 7). On September
6, 2008, FHFA's Director placed Fannie Mae into
conservatorships pursuant to HERA. (MSJ ¶ 3, ECF No.
October 25, 2010, Nevada Association Services, Inc.
(“NAS”), as agent for Canyon Willow Tropicana HOA
(the “HOA”) recorded a Notice of Delinquent
Assessment Lien against the Property for $1, 324.88. (Not. of
Delinquent Assessment Lien, Ex. I to MSJ). Then, on December
10, 2010, NAS recorded a Notice of Default and Election to
Sell, warning that the HOA would foreclose on its lien unless
the assessment payments were brought up to date. (Not. of
Default and Election to Sell, Ex. J to MSJ). Plaintiff
subsequently purchased the Property as the highest bidder at
the November 1, 2013 foreclosure sale. (Foreclosure Deed, Ex.
L to MSJ). At no time during the process did FHFA, as
conservator of Fannie Mae, consent to the HOA's
foreclosure. (See FHFA's Statement on HOA
Super-Priority Lien Foreclosures, Ex. M to MSJ).
January 7, 2011, BANA assigned the Deed of Trust to BAC Home
Loans Servicing, LP, who was later acquired by BANA through
merger. (Assignment of Deed of Trust, Ex. C to MSJ). A second
assignment from BANA to Green Tree Servicing LLC
(“Defendant”) was recorded on August 23, 2013.
(Second Assignment of Deed of Trust, Ex. D to MSJ).
initiated this action by filing the original complaint in
state court on February 24, 2015, asserting claims for quiet
title and declaratory relief against Defendant. (Compl.
¶¶ 13-18, Ex. A to Pet. for Removal, ECF No. 1-2).
Defendant subsequently removed the action to this Court on
March 31, 2015. (Pet. for Removal, ECF No. 1).
January 13, 2016, the Court entered an Order granting the
parties' Stipulation that granted the Intervenors
permission to intervene. (Order on Stipulation, ECF No. 28).
The Intervenors subsequently filed an Answer, asserting
counterclaims against Plaintiff. (Ans. to Compl. &
Counterclaims, ECF No. 29). Then, on July 5, 2016,
Intervenors filed the pending Motion for Summary Judgment.
(MSJ, ECF No. 37).
Federal Rules of Civil Procedure provide for summary
adjudication 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
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. See Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party's
favor.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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
determining summary judgment, a court applies a
burden-shifting analysis. “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). In 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 nonmoving 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).
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 Corp., 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,
477 U.S. at 249. 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.