United States District Court, D. Nevada
U.S. BANK NATIONAL ASSOCIATION, Plaintiffs,
ANTELOPE CANYON HOMEOWNERS ASSOCIATION,, Defendants.
before the court is U.S. Bank National Association, as
trustee for the holders of the WMALT 20060-AR8 trust
(“U.S. Bank”); Bank of America, N.A.
(“BOA”); and Nationstar Mortgage LLC's
(“Nationstar”) (collectively “the
Banks”) motion for summary judgment (ECF No. 39). SFR
Investment Pool 1, LLC (“SFR”) filed a response
(ECF No. 45), to which the Banks replied (ECF No. 48).
before the court is SFR's motion for summary judgment.
(ECF No. 40). The Banks filed a response (ECF No. 47), to
which SFR replied (ECF No. 49).
the court also considers SFR's motion to certify a
question of law to the Nevada Supreme Court. (ECF No. 66).
The Banks filed a response (ECF No. 67), to which SFR replied
(ECF No. 68).
case involves a dispute over real property located at 3761
Tohono Canyon Street, Las Vegas, Nevada 89147 (the
“property”). (ECF No. 3).
1, 2006, crossdefendant Gail Bundy (“Bundy”)
obtained a loan in the amount of $207, 200.00 from
Countrywide Home Loans, Inc. and purchased the property.
(Id.). The loan was secured by a deed of trust
recorded May 3, 2006. (Id.).
deed of trust was assigned to BAC Home Loans Servicing, LP
(“BAC”) via a corporate assignment deed of
trust. (Id.). The senior deed of trust
was then assigned to U.S. Bank via an assignment deed of
October 20, 2010, Alessi & Koenig
(“A&K”), acting on behalf of Antelope Canyon
Homeowners Association (“the HOA”), recorded a
notice of delinquent assessment lien, stating an amount due
of $1, 275.00. (Id.). On January 31, 2011, A&K
recorded a notice of default and election to sell to satisfy
the delinquent assessment lien, stating an amount due of $2,
April 2011, BAC and its counsel requested a payoff ledger
that specified the superpriority and subpriority lien
amounts. (Id.). A&K responded with a ledger that
had the total amount but did not specify the amount of the
superpriority portion. (Id.). Because the
superpriority portion was not specified, BAC and its counsel
calculated the nine months of assessments and determined the
superpriority amount to be $1, 440.00. (Id.). On
April 22, 2011, BAC tendered that amount to the HOA and
included restrictive terms and conditions with the amount.
(Id.). The HOA refused the payment and foreclosed on
the property on December 5, 2012. (Id.).
February 14, 2013, a foreclosure deed in favor of the HOA was
recorded. (Id.). The HOA purchased the property for
$8, 680.00. (ECF No. 39-8).
March 13, 2013, the HOA recorded a quitclaim deed
transferring its interest in the property to SFR. (ECF No.
27, 2015, U.S. Bank filed a complaint against SFR and the
HOA, alleging four causes of action: (1) quiet
title/declaratory judgment against all parties; (2) breach of
Nevada Revised Statute (“NRS”) 116.1113 against
the HOA; (3) wrongful foreclosure against the HOA; and (4)
injunctive relief against SFR. (ECF No. 3).
August 18, 2015, SFR filed a counterclaim against U.S. Bank
and a crossclaim against BOA, Nationstar, Wells Fargo Bank,
and Bundy alleging three causes of action: (1) declaratory
relief/quiet title against all parties; (2) preliminary and
permanent injunction against all parties; and (3) slander of
title against U.S. Bank and Nationstar. (ECF No. 11).
instant motions, the Banks and SFR move for summary judgment
(ECF Nos. 39, 40), and SFR moves to certify a question of law
to the Nevada Supreme Court (ECF No. 66). The court will
address each motion in turn.
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 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., 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.
Certify Question of Law to the Nevada Supreme Court
Nevada Rules of Appellate Procedure provide that the Supreme
Court of Nevada has the power to answer “questions of
[state] law . . . which may be determinative of the cause
then pending in the certifying court and as to which it
appears to the certifying court there is no controlling
precedent in the decisions of the Supreme Court of
[Nevada].” Nev. R. App. P. 5(a).
Nevada Supreme Court “may answer questions of law
certified [. . .] by a federal court when (1) [the] answers
to the certified questions may be determinative of part of
the federal case, (2) there is no clearly controlling Nevada
precedent, and (3) the answers to the certified questions
will help settle important questions of law. See,
e.g., Hartford Fire Ins. Co. v. Tr. of Const.
Indus., 208 P.3d 884, 888 (Nev. 2009).
the question does not impact the merits of a claim pending
before the certifying court, the question should not be
certified to the Nevada Supreme Court. See Nev. R.
App. P. 5(a) (requiring that certified question be
“determinative”); see also Volvo Cars of N.
Am., Inc. v. Ricci, 137 P.2d 1161, 1164 (Nev. 2006)
(declining to answer certified questions where “answers
to the questions posed  would not ‘be
determinative' of any part of the case”).
“The certification procedure is reserved for state law
questions that present significant issues, including those
with important public policy ramifications, and that have not
yet been resolved by the state courts.” Kremen v.
Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003).
courts have discretion to certify questions of state law.
Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).
“Resort to certification is not mandatory where state
law is unclear on a particular issue.” Carolina
Cas. Ins. Co. v. McGhan, 572 F.Supp.2d 1222, 1225 (D.
Nev. 2008) (citing Lehman Bros., 416 U.S. at
390-91). Generally, “[w]hen a decision turns on
applicable state law and the state's highest court has
not adjudicated the issue, a federal court must make a
reasonable determination of the result the highest state
court would reach if it were deciding the case.”
Aetna Cas. & Sur. Co. v. Sheft, 989 F.2d 1105,
1108 (9th Cir. 1993).
a federal court may decline to certify a question where
controlling precedent is available for guidance. Slayman
v. FedEx Ground Package Sys., Inc., 765 F.3d 1033, 1041
(9th Cir. 2014); see also Kehoe v. Aurora Loan Servs.,
LLC, No. 3:10-cv-256-RCJ-RAM; 2010 WL 4286331, at *11
(D. Nev. Oct. 20, 2010) (declining to certify question to
Nevada Supreme Court where statutory language was
sufficiently clear for the court to apply).
a party must show “particularly compelling
reasons” for certification when that party first
requests it after losing on an issue. Complaint of
McLinn, 744 F.2d 677, 681 (9th Cir. 1984)
(“Ordinarily such a movant should not be allowed a
second chance at victory when, as here, the district court
employed a reasonable interpretation of state law.”).
Motions for Summary Judgment (ECF Nos. 39, 40)
motion, SFR moves for summary judgment on its
cross/counterclaims for quiet title, preliminary and
permanent injunction, and slander of title (ECF No. 40),
whereas the Banks move for summary judgment on U.S.
Bank's quiet title/declaratory judgment claim, breach of
NRS 116.1113, wrongful foreclosure, and injunctive relief
claim as well as SFR's cross- and counterclaims. (ECF No.
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.”).
asserts that summary judgment in its favor is proper because,
inter alia, the foreclosure sale extinguished U.S.
Bank's deed of trust pursuant to NRS 116.3116 and SFR
Invs. Pool 1, LLC v. U.S. Bank, N.A., 334 P.3d 408,
412-14 (Nev. 2014) (“SFR Investments”)
and because U.S. Bank has not met the fraud, unfairness, or
oppression requirement to equitably set aside a foreclosure
sale as outlined in Shadow Wood Homeowners Assoc. v. N.Y.
Cmty. Bancorp., Inc., 366 P.3d 1105, 1112 (Nev. 2016)
(“Shadow Wood”). (ECF No. 40).
Banks echo some of SFR's arguments in their motion for
summary judgment, asserting that summary judgment is
appropriate against SFR's quiet title action. (ECF No.
39). The Banks argue that summary judgment as to the quiet
title claim should be granted on their behalf because the
superpriority payment amount was tendered, the initial
foreclosure sale was invalid, and because the Banks are
entitled to equitable relief under Shadow Wood.
(Id.). The Banks further argue that summary judgment
should be granted on their behalf because the HOA did not
authorize its agent to foreclose on the property, rendering