United States District Court, D. Nevada
JAIVIES C. MAHAN, UNITED STATES DISTRICT JUDGE
before the court is defendant/counterclaimant SFR Investments
Pool 1, LLC's (“SFR”) motion for summary
judgment. (ECF No. 62). Plaintiff/counterdefendant Deutsche
Bank National Trust Company as trustee for the GSAA trust
pass-through certificates, series 2006-8 (“Deutsche
Bank”) and crossdefendants Nationstar Mortgage LLC
(“Nationstar”) and Bank of America, N.A.
(“BANA” and collectively, with Deutsche Bank and
BANA, as the “Banks”) filed a response (ECF No.
69), to which SFR replied (ECF No. 75). Also before the court
is defendant Talasera and Vicanto Homeowners'
Association's (the “HOA”) motion to dismiss.
(ECF No. 72). Deutsche Bank filed a response (ECF No. 78), to
which the HOA replied (ECF No. 86). Also before the court is
the Banks' motion for summary judgment. (ECF No. 89).
case involves a dispute over real property located at 9165
Cantina Creek Court, Las Vegas, NV 89178 (the
February 1, 2006, David and Keri Bases (the
“borrowers”) obtained a loan in the amount of
$377, 000.00 from Ryland Mortgage Company to purchase the
property, which was secured by a deed of trust recorded on
February 14, 2006. (ECF Nos. 55; 69).
deed of trust was assigned to BAC Home Loans Servicing, LP,
fka Countrywide Home Loans Servicing, LP (“BAC”)
via an assignment of deed of trust recorded June 13, 2011.
(ECF No. 22 at 13). BANA is the successor by merger to BAC,
effective July 2011. (ECF Nos. 22 at 13; 69 at 4).
December 29, 2011, Nevada Association Services, Inc.
(“NAS”), acting on behalf of the HOA, recorded a
notice of delinquent assessment lien, stating an amount due
of $1, 099.40. (ECF No. 55). On February 29, 2012, NAS
recorded a notice of default and election to sell to satisfy
the delinquent assessment lien, stating an amount due of $1,
942.90. (ECF No. 55). On March 26, 2012, BANA requested a
superpriority demand payoff from NAS, to which NAS did not
respond. (ECF No. 55). BANA determined the superpriority
portion of the lien to be $765.00, and tendered that amount
to NAS on April 12, 2012, which NAS allegedly rejected. (ECF
August 30, 2012, NAS recorded a notice of trustee's sale,
stating an amount due of $3, 483.57. (ECF No. 55). On
September 21, 2012, SFR purchased the property at the
foreclosure sale for $8, 800.00. (ECF No. 55). A foreclosure
deed in favor of SFR was recorded on September 25, 2012. (ECF
assigned the deed of trust to Nationstar via an assignment of
deed of trust recorded August 15, 2013. (ECF No. 22 at 13).
Thereafter, Nationstar assigned the deed of trust to Deutsche
Bank via an assignment of deed of trust recorded September 4,
2014. (ECF No. 22 at 14). On January 23, 2015, Nationstar
recorded a request for notice against the property. (ECF No.
22 at 14).
16, 2015, Deutsche Bank filed a complaint (ECF No. 1), which
was later amended on May 19, 2016 (ECF No. 55). In the
amended complaint, Deutsche Bank alleges four claims for
relief: (1) quiet title/declaratory relief; (2) breach of NRS
116.1113 against the HOA; (3) wrongful foreclosure against
the HOA; and (4) injunctive relief against SFR. (ECF No. 55).
On September 18, 2015, SFR filed a counterclaim against
Deutsche Bank and a crossclaim against Nationstar, BANA, and
the borrowers, alleging three causes of action: (1) quiet
title/declaratory relief; (2) preliminary and permanent
injunction; and (3) slander of title against the Banks. (ECF
instant motions, SFR (ECF No. 62) and the Banks (ECF No. 89)
move for summary judgment on their claims, and the HOA moves
to dismiss Deutsche Bank's claims against it (ECF No.
72). The court will address each as it sees
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. at 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
plaintiff's 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,
plaintiff's 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. 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 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.
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.
The HOA's Motion to Dismiss (ECF No. 72)
Quiet Title/Declaratory Relief (claim 1)
argues that Deutsche Bank's quiet title claim fails
because it cannot prove good title in itself and because the
HOA claims no adverse interest in the property. (ECF No. 72).
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) (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 double, multiple,
or otherwise inconsistent obligations because of the
interest.” Fed.R.Civ.P. 19(a)(1).
the HOA is a necessary party to this action based on the
current allegations and relief sought. The HOA has a present
interest in the property because Deutsche Bank challenges the
validity of the foreclosure sale and/or to equitably set
aside the sale. See, e.g., U.S. Bank, N.A. v.
Ascente Homeowners Ass'n, No. 2:15-cv-00302-JAD-VCF,
2015 WL 8780157, at *2 (D. Nev. Dec. 15, 2015). If the
foreclosure sale is invalidated or set aside, the HOA's
superpriority lien might be reinstated as an encumbrance
against the property.
the existence and priority of that lien might still be in
doubt where Deutsche Bank alleges it tendered payment of that
lien. “The disposition of this action in the HOA's
absence may impair or impede its ability to protect its
interests.” U.S. Bank, N.A., 2015 WL 8780157,
at *2. Furthermore, if Deutsche Bank “succeeds in
invalidating the sale without the HOA being a party to this
suit, separate litigation to further settle the priority of
the parties' respective liens and rights may be
necessary.” Id. Thus, if the HOA is dismissed
as a party, Deutsche Bank would not be able to secure the
complete relief it seeks. See id.; see also
Fed. R. Civ. P. 19(a). Accordingly, the HOA is a proper party
to Deutsche Bank's quiet title claim, and its motion to
dismiss as to this claim will be denied.
Breach of NRS 116.1113 (claim 2) & Wrongful Foreclosure
the HOA argues that the court lacks subject matter
jurisdiction to consider Deutsche Bank's claims for
breach of NRS 116.1113 and wrongful foreclosure pursuant to
NRS 38.310. (ECF No. 72 at 5).
response, the Banks contend that NRS 38.310 is inapplicable
and that Real Estate Division of the Nevada Department of
Business and Industry's (“NRED”) authority
expired. (ECF No. 78 at 7). Deutsche Bank asserts that it
exhausted its administrative remedies or “was excused
from doing so” because it submitted the dispute to NRED
on December 8, 2015, and NRED failed to timely complete
mediation in the allotted 60 days. (ECF No. 78 at 11). As an
initial matter, NRS 38.310 is an exhaustion statute that
creates prerequisites for filing certain state-law claims,
not a jurisdictional statute. See, e.g.,
Carrington Mortg. Servs., LLC, v. ...