United States District Court, D. Nevada
before the court is a motion for summary judgment filed by
defendants BAC Home Loans Servicing, LP, fka Countrywide Home
Loans Servicing, LP ("BAC"), Carrington Mortgage
Services ("CMS"), and Mortgage Electronic
Registration Systems, Inc. ("MERS" and
collectively, with BAC and CMS, as "defendants").
(ECF Nos. 76, 77). Counterdefendant/third-party plaintiff RH
Kids, LLC ("RHK") filed a response (ECF No. 80), to
which defendants replied (ECF No. 82).
before the court is RHK's motion for summary judgment.
(ECF No. 78). Defendants filed a response (ECF No. 81), to
which RHK replied (ECF No. 83).
case involves a dispute over real property located at 5234
Fire Night Avenue, Las Vegas, Nevada 89122 (the
Davis obtained a loan to purchase the property, which was
secured by a deed of trust in favor of Pulte Mortgage LLC and
recorded on January 6, 2009. (ECF No. 4 at 6). Pulte Mortgage
LLC transferred the beneficial interest in the deed of trust
to BAC via a corporate assignment deed recorded on August 11,
2010. (ECF No. 4 at 6).
North Homeowners' Association (the "HOA")
claimed a lien on the property for assessments accruing
pursuant to the covenants, conditions, and restrictions
("CC&Rs"). (ECF No. 4). On April 12, 2011,
Absolute Collection Services, LLC ("ACS"), on
behalf of the HOA, recorded a notice of delinquent assessment
lien, stating an amount due of $1, 074.00. (ECF No. 77). On
July 18, 2011, ACS recorded a notice of default and election
to sell, stating an amount due of $2, 009.41. (ECF No. 77).
On November 10, 2011, ACS recorded a notice of trustee's
sale, stating an amount due of $3, 530.72. (ECF No. 77).
January 30, 2012, BANA's prior counsel sent a letter to
the HO A/ACS requesting and offering to pay the superpriority
amount "upon presentation of adequate proof. (ECF No. 77
at 4). ACS alleged refused BANA's offer to pay the
superpriority amount of the HOA's lien. (ECF No. 77 at
April 17, 2012, the HOA conducted a foreclosure sale pursuant
to NRS Chapter 116. (ECF No. 4 at 6). Rex Archambault
("Archambault") purchased the property at the
foreclosure sale for $5, 000.00, and a trustee's deed
upon sale was recorded on April 18, 1012. (ECF No. 4 at 6).
RJRN obtained title to the property via quitclaim deed
recorded on February 10, 2014. (ECF No. 4 at 6). RHK was
subsequently transferred title to the property via a quit
claim deed recorded on December 23, 2015. (ECF No. 28).
recorded a request for notification of default on December
14, 2014. (ECF No. 4 at 7).
filed the original complaint in state court on June 6, 2015,
alleging three causes of action: (1) declaratory relief/quiet
title; (2) preliminary and permanent injunction; and (3)
slander to title. (ECF No. 4). Defendants removed the action
to federal court on July 2, 2015. (ECF No. 1). On February
15, 2017, the court dismissed RJRN's second and third
claims. (ECF No. 87).
April 28, 2016, RHK filed a third-party complaint against
Davis, MERS, and BAC, alleging two causes of action: (1)
quiet title; and (2) injunctive relief. (ECF No. 28).
instant motions, defendants and RHK move for summary
judgment. The court will address each as it sees
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. Tramp.
Brokerage Co. v. DardenRests., 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., 411 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. 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 plaintiffs 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").
defendants' motion, they argue that quiet title in their
favor is proper because the HOA lien statute is facially
unconstitutional, BANA's tender extinguished the
superpriority lien, RHK is not a bona fide purchaser, the
foreclosure sale was commercially unreasonable, SFR
Investments should not apply retroactively, and the HOA
lien statute is preempted. (ECF No. 77).
RHK's motion, it contends that quiet title in its favor
is proper because the foreclosure sale complied with NRS
Chapter 116, RHK is a bona fide purchaser, the foreclosure
sale was commercially reasonable, and RHK implicates no
federal interest in its claim. (ECF No. 78).
116.3116(1) of the Nevada Revised Statutes gives an HOA a
lien on its homeowners' residences for unpaid assessments
and fines; moreover, NRS 116.3116(2) gives priority to that
HOA lien over all other liens and encumbrances with limited
exceptions-such as "[a] first security interest on the
unit recorded before the date on which the assessment sought
to be enforced became delinquent." Nev. Rev. Stat.
statute then carves out a partial exception to subparagraph
(2)(b)'s exception for first security interests.
See Nev. Rev. Stat. § 116.3116(2). In SFR
Investment Pool 1 v. U.S. Bank, ...