United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
case involves application of a statutory provision formerly
codified at NRS § 40.459(1)(c) (“Subsection
(1)(c)”), which placed additional limitations upon the
right of a successor-creditor to recover on a deficiency.
Before the Court are competing motions: (1) Plaintiff Eagle
SPE NV 1's (“Eagle”) Motion for Summary
Judgment as to Liability and Application for Deficiency
Judgment Hearing Pursuant to Nevada Revised Statute §
40.457 (“Plaintiff's Motion”) (ECF No. 132);
and (2) Defendants' Motion for Summary Judgment
(“Defendant's Motion”) (ECF No.
133). The Court has reviewed the parties'
responses, replies and Eagle's supplement to its reply in
connection with these Motions. (ECF Nos. 137, 142, 138, 143,
145.) For the reasons discussed below, Defendants' Motion
is granted and Plaintiff's Motion is denied.
relevant facts are undisputed.
30, 2007, Southern Highland Development Corporation, Olympia
Group, L.L.C., and Olympia Land Corporation (collectively
“Borrowers”) executed a Revolving Line of Credit
Promissory Note (“Note”) Secured by a Deed of
Trust to Colonial Bank, N.A.
(“Colonial”) in the original principal amount of
$25, 000, 000.00 (the “Note”). (ECF No. 133-3.)
The Note was secured by a Deed of Trust and Security
Agreement and Fixture Filing with Assignment of Rents dated
July 30, 2007, and recorded August 15, 2007 (the
“DOT”), encumbering certain real property located
in Clark County, Nevada (the “Property”).
(Id.; ECF No. 133-5.) The same day, Garry Goett and
Guy Inzalaco (“Guarantors”), in their individual
capacities and in their positions as trustees of their
respective trusts, executed a certain guarantee (“the
Guarantee”) where they agreed to guarantee payment
under the Note. (ECF No. 133-6.) The Note was amended thrice
thereafter: in December 2007, September 2008, and December
2008. (ECF Nos. 132-5, 132-6 & 132-7.)
August 14, 2009, Colonial was closed by the State Banking
Department of the State of Alabama, and the Federal Deposit
Insurance Corporation (“FDIC”) was named
receiver. (ECF No. 132-1 at 5.) On the same day, the FDIC
assigned a substantial portion of Colonial's assets,
including the Note, DOT, and accompanying loan documents, to
Branch Banking and Trust Company (“BB&T”)
through a Purchase and Assumption Agreement (“the
Agreement”). (Id.; ECF No. 132-8; ECF Nos.
133-8 & 133-9.) The Note was made payable to BB&T.
(ECF No. 132-8.)
November 12, 2009, the maturity date of the Note, Borrowers
failed to pay the outstanding principal balance due under the
Note. (ECF No. 132-1 at 5.) BB&T made a written demand
for payment in August 2010. (Id.; ECF No. 132-9.)
Borrowers and Guarantors failed to pay the balance owing
under the Note. (ECF No. 132-1 at 5.)
November 8, 2011, BB&T assigned its rights under the
Note, DOT, the Guarantee and other loan documents to Eagle
via two assignment documents (“the Assignments”).
(Id. at 5-6; ECF No. 132-10.) On November 15, 2011,
Eagle effectuated the sale of the Property at a non-judicial
foreclosure sale for a cash bid in the amount of $5, 340,
001.00. (ECF No. 132-1 at 6; ECF No 133-16.) On November 17,
2011, Eagle made a written demand on Borrowers and Guarantors
to pay the deficiency. (ECF No. 132-13.) They refused. (ECF
No. 132-1 at 6.)
Eagle initiated this action, the Court dismissed the
Complaint with leave to amend. (ECF No. 66 (“First
Dismissal Order”).) The Court subsequently dismissed
the claim for breach of the implied covenant of good faith
and fair dealing in the Second Amended Complaint
(“SAC”), permitting Eagle to proceed on a claim
for deficiency and two claims for breach of contract. (ECF
No. 93 (“Second Dismissal Order”).)
purpose of summary judgment is to avoid unnecessary trials
when there is no dispute as to the facts before the
court.” Nw. Motorcycle Ass'n v. U.S. Dep't
of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary
judgment is appropriate when the pleadings, the discovery and
disclosure materials on file, and any affidavits “show
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986).
An issue is “genuine” if there is a sufficient
evidentiary basis on which a reasonable fact-finder could
find for the nonmoving party and a dispute is
“material” if it could affect the outcome of the
suit under the governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986). Where reasonable
minds could differ on the material facts at issue, however,
summary judgment is not appropriate. See Id. at
250-51. “The amount of evidence necessary to raise a
genuine issue of material fact is enough ‘to require a
jury or judge to resolve the parties' differing versions
of the truth at trial.'” Aydin Corp. v. Loral
Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting
First Nat'l Bank v. Cities Service Co., 391 U.S.
253, 288-89 (1968)). In evaluating a summary judgment motion,
a court views all facts and draws all inferences in the light
most favorable to the nonmoving party. Kaiser Cement
Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103
(9th Cir. 1986).
moving party bears the burden of showing that there are no
genuine issues of material fact. Zoslaw v. MCA Distrib.
Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the
moving party satisfies Rule 56's requirements, the burden
shifts to the party resisting the motion to “set forth
specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 256. The
nonmoving party “may not rely on denials in the
pleadings but must produce specific evidence, through
affidavits or admissible discovery material, to show that the
dispute exists, ” Bhan v. NME Hosps., Inc.,
929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Orr v. Bank of Am., 285
F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). “The mere existence of a scintilla of evidence
in support of the plaintiff's position will be
insufficient.” Anderson, 477 U.S. at 252.