United States District Court, D. Nevada
C. JONES United States District Judge.
action arises out of a homeowners association foreclosure
sale. Pending before the Court are: (1) Defendant Alessi
& Koenig LLC's (“Alessi”) Motion for
Leave to File Excess Pages (ECF No. 24), Motion for Order
Granting Nonmonetary Status (ECF No. 26), and Declaration of
Nonmonetary Status (ECF No. 27); and (2) Plaintiff Nationstar
Mortgage LLC's (“Nationstar”) Motion for
Summary Judgment (ECF No. 20).
FACTS AND PROCEDURAL HISTORY
November 2008, Defendants Liliana and Angelica
Castellon-Moreno purchased real property in Las Vegas, Nevada
(“the Property”), subject to the Covenants,
Conditions, and Restrictions (“CC&Rs”) of
Sutter Creek Homeowners Association (“the HOA”).
(Compl. ¶¶ 8, 13, 25, ECF No. 1). On October 30,
2013, after the Castellons had failed to pay regular
assessments under the CC&Rs, Alessi conducted a
non-judicial foreclosure sale on behalf of the HOA, whereby
Defendant LVDG LLC (“LVDG”) acquired the Property
for $8, 800. (Id. at ¶¶ 16-22.)
Thereafter, on July 24, 2014, a corporate assignment of deed
of trust was executed purporting to assign the note and first
deed of trust (“DOT”) to Nationstar.
(Id. at ¶ 15.)
August 25, 2015, Nationstar brought this action against
Defendants for quiet title, declaratory relief, wrongful
foreclosure, negligence, negligence per se, breach of
contract, misrepresentation, unjust enrichment, and breach of
the covenant of good faith and fair dealing. Nationstar is
primarily seeking a declaration that the DOT was not
extinguished by the HOA foreclosure sale.
SUMMARY JUDGMENT STANDARD
must grant summary judgment when “the movant shows 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 which 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. 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).
determining summary judgment, a court uses a burden-shifting
scheme. 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.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks 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.
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 (1970). If the moving party
meets its initial burden, the burden then shifts to the
opposing party to establish a genuine issue of material fact.
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). However, 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
Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at
summary judgment stage, 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. Notably, facts are only viewed in
the light most favorable to the non-moving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007).
Alessi's Declaration of Nonmonetary Status
August 1, 2016, Alessi filed a declaration of nonmonetary
status under NRS 107.029. (ECF No. 27.) Alessi also filed a
Motion for Order Granting Nonmonetary Status and a 48-page
brief in support thereof. (ECF Nos. 26, 28.) Pursuant to
Local Rule 7-3(c), Alessi sought leave of the Court to exceed
the 24-page limit applicable to miscellaneous pre-trial
motion briefs. (ECF No. 24.) As Judge Dorsey of this District
recently noted-in a substantially similar case where Alessi
filed a nearly identical brief-Alessi's brief is
egregiously excessive, and Alessi has not made a sufficient
showing of good cause. See Nationstar Mortgage LLC v.
Copper Sands Homeowners Association, Inc.,
2:16-cv-01218-JAD-GWF (D. Nev. Aug. 8, 2016) (order denying
motion for leave to file excess pages).
importantly, however, it seems Alessi has misapprehended the
procedural framework of NRS 107.029. The statute does not
require, nor even permit, a party to move the Court for an
order granting nonmonetary status. Rather, the party seeking
the statute's protection simply files and serves a
declaration setting forth (1) the party's status as
trustee under the deed of trust, and (2) the factual basis
for the trustee's “reasonable belief that he or she
has been named as a defendant in the action solely in his or
her capacity as trustee and not as a result of any wrongful
act or omission made in the performance of his or her duties
as trustee.” NRS 107.029(1)(a)-(b). Unlike a motion, a
declaration of nonmonetary status does not require the Court
to act. Indeed, the only action the statute requires-or
expressly permits-the Court to take is to rule on a timely
objection to the declaration. NRS 107.029(4)-(5). The statute
provides: “If no objection is raised within the 15-day
period pursuant to subsection 3 . . . the ...