United States District Court, D. Nevada
before this court is Federal National Mortgage Association
("Fannie Mae") and Federal Housing Finance
Agency's ("FHFA") motion for summary judgment
(ECF No. 45). Plaintiff Vita Bella Homeowners Association
(the "HOA") has failed to file a timely response to
that motion and has not demonstrated any reason why this
lapse should be excused. See LR 7-2(b); see
also (ECF Nos. 46, 47). Accordingly, the HOA's
response to the instant motion will be stricken. (ECF No.
March 20, 2015, Fannie Mae filed a timely petition for
removal in this court. (ECF No. 1). The underlying complaint
asserted "claims" of quiet title and declaratory
relief against, inter alia, Fannie Mae in relation
to the HOA's public auction of the real property at 5
Corte Belleza, Henderson, Nevada on September 16, 2013, and
Fannie Mae's September 4, 2014, foreclosure sale on the
same property. (ECF No. 1-2).
8, 2015, Magistrate Judge Ferenbach granted FHFA's motion
to intervene as conservator of Fannie Mae. (ECF No. 14). On
May 15, 2015, FHFA submitted an answer to the complaint and
asserted counterclaims for declaratory relief and quiet title
against the HOA. (ECF No. 16).
failure to respond to a motion for summary judgment is not a
sufficient condition for that motion's success.
See LR 7-2(d); see also Heinemann v.
Satterberg, 731 F.3d 914, 917-18 (9th Cir. 2013). A
district court may grant an unopposed motion for summary
judgment only if the movant's filings satisfy the summary
judgment standard. See White v. Aramark, No.
14-55405, 2016 WL 6583620, at *1 (9th Cir. Nov. 7, 2016)
(citing Henry v. Gill Indus., Inc., 983 F.2d 943,
950 (9th Cir. 1993)). The court proceeds accordingly.
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 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
non-moving party must "set forth specific facts showing
that there is a genuine issue for trial." Id.
determining summary judgment, the 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." C.A.R. Transp. Brokerage Co. v. Darden
Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000).
Moreover, "[i]n 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."
contrast, when the non-moving 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 non-moving 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., 497 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 non-moving 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, 630(9thCir. 1987).
instant motion, FHFA argues that § 4617(j)(3) of the
Housing and Economic Recovery Act of 2008 ("HERA")
preempts state law and bars the foreclosure of the underlying
property without FHFA's consent. (ECF No. 45); see
also 12 U.S.C. § 4617(j)(3). Thus, Fannie Mae and
FHFA posit that they are entitled to summary judgment because
the foreclosure sale could not disrupt Fannie Mae's
property interest. (ECF No. 45).
Nevada Revised Statute ("NRS") 116.3116, a
homeowner's association ("HOA") has a lien on a
property for assessments levied against that property and
such liens are prior to all other liens and encumbrances,
subject to exceptions. Nev. Rev. Stat. 116.3116(1)-(2). In
SFR Investments Pool I, the Nevada Supreme Court
found that a HOA's foreclosure of a super-priority ...