United States District Court, D. Nevada
U.S. BANK, NATIONAL ASSOCIATION, Plaintiff,
SFR INVESTMENT POOL I, LLC, et al., Defendants.
J. Dawson United States District Judge.
before the Court is Defendant SFR (“SFR”)
Investment Pool I, LLC's Motion for Summary Judgment
(#32). Plaintiff U.S. Bank filed a response in opposition
(#38/47) to which Defendant replied (#49). Also before the
Court is Plaintiff U.S. Bank's Motion for Summary
Judgment (#36/46). Defendant SFR filed a response in
opposition (#39) to which U.S. Bank replied (#48).
present action involves a dispute over real property located
at 6353 Ebony Legends Avenue, Las Vegas, NV 89131 (“the
Property”). Tricia Thoen purchased the Property on or
about May 25, 2005. Thoen financed the purchase with a $479,
920.00 loan, secured by a deed of trust dated June 7, 2005.
The deed of trust in favor of Meridias Capital, Inc.
contained a Planned Unit Development Rider, prepared by the
lender and signed by Thoen. The Rider recognized the need to
pay assessments to the White Horse Estates Homeowners
Association (“the Association”) and the ability
of the lender to pay the assessments if Thoen defaulted.
23, 2006, a deed was filed with the Clark County
Recorder's office transferring Thoen's interest to
Cross-Defendand MAT Holdings, LLC. On April 1, 2009, the
Property holder became delinquent on payments on the deed of
trust. On August 18, 2009, Recontrust Company, N.A., acting
on behalf of beneficiary recorded Notice of Default and
Election to Sell. On September 8, 2009, the deed of trust was
assigned by Mortgage Electronic Registration Systems, Inc. to
BAC Home Loans Servicing, LP. On July 27, 2010, Fidelity
National Title was substituted for Recontrust as trustee
under the deed of trust. On September 9, 2010, the
Association recorded Notice of Delinquent Assessment Lien,
which was released on April 28, 2011 after the Association
received payment for the entire amount. On December 28, 2011,
the Association recorded a second Notice of Delinquent
Assessment Lien, stating that MAT owed $2, 677.24 in past due
assessments, late fees and interest. On February 23, 2012,
the Association, through its agent Nevada Association
Services (“NAS”) recorded a Notice of Default and
Election to Sell under the second lien, stating that MAT now
owed $3, 854.72.
servicers of the loan at the time, Bank of America, N.A.
(“BANA”), offered to pay the super-priority
amount, nine (9) months of assessments. BANA's counsel
contacted the Association to pay the delinquent assessments.
BANA then paid the full amount of $3, 854.72. The Association
then released the second lien on or about October 22, 2012.
On or about August 29, 2012, the first deed of trust was
assigned from BANA to Plaintiff U.S. Bank.
March 26, 2013, the Association, through its agent NAS,
recorded a third Notice of Delinquent Assessment Lien
(“the Operative Lien”). The Operative Lien stated
that MAT now owed $1, 429.58. On June 11, 2013, NAS, as agent
for the Association, recorded a Notice of Default and
Election to Sell in order to satisfy the Operative Lien. The
notice stated that the amount due the Association was $2,
740.49. A Notice of Foreclosure Sale was recorded on or about
October 11, 2013. The foreclosure sale was schedule for
November 1, 2013. Defendant SFR bid the highest amount at the
foreclosure sale. The Foreclosure Deed was recorded on
November 6, 2013 stating that the sale price was $25, 000.00.
The Deed estimated that the value of the property was $308,
filed the present complaint on February 6, 2015 asserting
claims for unjust enrichment, injunctive relief and a
declaration that its deed of trust is superior to any
interest asserted by any other party and was not extinguished
by the Association's foreclosure of its super-priority
lien. After Defendant SFR filed a counter-claim
seeking to quiet title, the parties filed the present motions
for summary judgment.
Standard for Summary Judgment
judgment may be granted if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law. See Fed.R.Civ.P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The moving party bears the initial burden of
showing the absence of a genuine issue of material fact.
See Celotex, 477 U.S. at 323. The burden then shifts
to the nonmoving party to set forth specific facts
demonstrating a genuine factual issue for trial. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
justifiable inferences must be viewed in the light must
favorable to the nonmoving party. See Matsushita,
475 U.S. at 587. However, the nonmoving party may not rest
upon the mere allegations or denials of his or her pleadings,
but he or she must produce specific facts, by affidavit or
other evidentiary materials as provided by Rule 56(e),
showing there is a genuine issue for trial. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The
court need only resolve factual issues of controversy in
favor of the non-moving party where the facts specifically
averred by that party contradict facts specifically averred
by the movant. See Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990); see also
Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69
F.3d 337, 345 (9th Cir. 1995) (stating that conclusory or
speculative testimony is insufficient to raise a genuine
issue of fact to defeat summary judgment). Evidence must be
concrete and cannot rely on “mere speculation,
conjecture, or fantasy. O.S.C. Corp. v. Apple Computer,
Inc., 792 F.2d 1464, 1467 (9th Cir. 1986).
“[U]ncorroborated and self-serving testimony, ”
without more, will not create a “genuine issue”
of material fact precluding summary judgment. Villiarimo
v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.
judgment shall be entered “against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. Summary judgment shall not
be granted if a reasonable jury could return a verdict for
the nonmoving party. See Anderson, 477 U.S. At 248.