United States District Court, D. Nevada
before the court is defendant/counterclaimant SFR Investments
Pool 1, LLC's (“SFR”) motion for summary
judgment (ECF No. 55),  plaintiff Wells Fargo Bank, N.A.'s
(“Wells Fargo”) motion for summary judgment (ECF
No. 56), and defendant Sunrise Highlands Community
Association's (the “HOA”) countermotion for
summary judgment (ECF No. 64). Responses and replies to these
motions are on the record. (ECF Nos. 61-63, 67-69, 74, 76).
8, 2008, Alfonso and Maria Razo bought the real property at
2678 Early Light Drive, Las Vegas, Nevada (the
“property”) for a sum of $385, 000. (ECF No. 56).
On September 23, 2010, the pair refinanced the property via
Castle & Cooke Mortgage's (“C&C”)
$376, 010 loan. (ECF Nos. 56, 56-4). Consequently, the Razos
provided a deed of trust as security for the loan, which was
recorded on September 29, 2010. (ECF No. 56-5).
appointed Mortgage Electronic Registration Systems, Inc.
(“MERS”) as the note and deed of trust
beneficiary and obtained mortgage insurance through the
Secretary of Housing and Urban Development. (Id.).
On September 21, 2011, MERS conveyed its interest in the deed
of trust to plaintiff via a corporate assignment deed of
trust. (ECF No. 56-6). On November 20, 2011, Wells Fargo
recorded a substitution of trustee, appointing National
Default Servicing Corporation as trustee of the deed of
trust. (ECF No. 56-7).
notice of delinquent assessment (lien) was recorded on March
20, 2012, by Alessi & Koenig (“A&K”) on
behalf of the HOA in the amount of $965.89. (ECF No. 55-1 at
November 16, 2012, A&K mailed to plaintiff and others,
via United States Postal Service certified mail, a notice of
trustee's sale, which was recorded on November 19, 2012.
(ECF No. 55-1 at 162-65). That notice indicated that $3,
025.11 was owed and explicitly warned that failure to satisfy
the balance would result in the sale of the property at
A&K's office on December 19, 2012. (ECF No. 56-10).
That notice also referenced the record date and instrument
number of the underlying HOA lien. (Id.).
sale, SFR purchased the property for $16, 000, and the
accompanying trustee's deed upon sale was recorded on
December 20, 2012. (ECF No. 56-11).
Fargo initiated the present action on April 23, 2015. (ECF
No. 1). On April 30, 2015, plaintiff filed its amended
complaint-the operative one at this time. (ECF No. 10).
amended complaint asserts the following claims: (1) violation
of the Fifth Amendment's takings clause against all
defendants; (2) violation of the United States
Constitution's supremacy clause against all defendants;
(3) violation of the Fifth and Fourteenth Amendment due
process clauses against all defendants; (4) wrongful
foreclosure against all defendants; (5) violation of Nevada
Revised Statute (“NRS”) 116.1113 et seq.
against the HOA and A&K; (6) intentional interference
with contract against all defendants; and (7) quiet title
against all defendants. (ECF No. 10).
answer to the amended complaint asserted its
counter/cross-claims for quiet title and injunctive relief as
to the property. (ECF No. 21). SFR's motion for summary
judgment asks the court to hold that, inter alia,
“the Association's foreclosure sale was
commercially reasonable, SFR is the title holder of the
Property, and that the Bank's deed of trust was
extinguished.” (ECF No. 55 at 20).
HOA's countermotion for summary judgment requests that
the court “deny [Wells Fargo]'s request for summary
judgment” and resolve plaintiff's claims in this
case in favor of the HOA. (ECF No. 64 at 5). The court will
sequentially consider the claims in this case.
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., 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 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 (9th Cir.
Ninth Circuit has held that information contained in an
inadmissible form may still be considered for summary
judgment if the information itself would be admissible at
trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003) (citing Block v. City of Los Angeles, 253
F.3d 410, 418-19 (9th Cir. 2001) (“To survive summary
judgment, a party does not necessarily have to produce
evidence in a form that would be admissible at trial, as long
as the party satisfies the requirements of Federal Rules of
Civil Procedure 56.”)).
Takings clause Wells Fargo contends that NRS 116.3116
et seq. violates the Fifth Amendment takings clause.
(ECF No. 56). The takings clause prohibits the state from
taking private property for public use without just
compensation. U.S. Const. amend. V. Wells Fargo's
argument, however, has been rejected. See, e.g.,
Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo
Home Mortg., a Div. of Wells Fargo Bank, N.A., 388 P.3d
970, 975 (Nev. 2017) (”[T]he extinguishment of a
subordinate deed ...