United States District Court, D. Nevada
before the court is plaintiff Bank of America, N.A.'s
(“BANA”) motion for summary judgment. (ECF No.
36). Defendant Arlington West Twilight Homeowners Association
(the “HOA”) and defendant/crossclaimant Thomas
Jessup, LLC, Series IV (“Jessup IV”) filed
responses (ECF Nos. 40, 38), to which BANA replied (ECF Nos.
before the court is the HOA's motion for summary judgment
(ECF No. 37), in which defendant Thomas Jessup, LLC
(“Jessup”) joined (ECF No. 39). BANA filed a
response (ECF No. 42), to which the HOA relied (ECF No. 44).
case involves a dispute over real property located at 9179
Smugglers Beach Court, Las Vegas, Nevada 89178 (the
March 26, 2008, Roy and Michelle Kinard (the
“Kinards”) purchased the property by way of a
loan from DHI Mortgage Company, LTD. in the amount of $294,
956.00, which was secured by a deed of trust recorded on
March 31, 2008. (ECF No. 1 at 4). Federal Housing
Administration (“FHA”) insured the note and deed
of trust. (ECF No. 1 at 4). Later, the deed of trust was
assigned to BANA via an assignment of deed of trust. (ECF No.
1 at 4).
October 21, 2010, Alessi & Koenig, LLC
(“A&K”), acting on behalf of the HOA,
recorded a notice of delinquent assessment lien, stating an
amount due of $850.00. (ECF No. 1 at 4). 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 $1, 807.00. (ECF No. 1 at 4-5).
10, 2011, BANA remitted payment to the HOA to satisfy to
superpriority amount owed to the HOA. (ECF No. 1 at 5).
August 14, 2012, A&K recorded a notice of trustee's
sale, stating an amount due of $3, 256.00 and scheduling the
sale for September 12, 2012. (ECF No. 1 at 5). Defendant
Thomas Jessup, LLC (“Jessup”) purchased the
property at the foreclosure sale for $7, 350.00. (ECF No. 1
at 6). A trustee's deed upon sale in favor of Jessup was
recorded on October 2, 2012. (ECF No. 1 at 6).
IV acquired the property from Jessup via a quit claim deed
recorded on May 31, 2013. (ECF No. 1 at 6).
March 24, 2016, BANA filed the underlying complaint, alleging
four causes of action: (1) quiet title/declaratory judgment
against all defendants; (2) breach of NRS 116.1113 against
the HOA and A&K; (3) wrongful foreclosure against the HOA
and A&K; and (4) injunctive relief against Jessup
IV. (ECF No. 1). On April 15, 2016, Jessup IV filed an answer
and cross/counterclaims, alleging two causes of action: (1)
quiet title against all parties; and (2) declaratory relief
against BANA. (ECF No. 11). The court dismissed the wrongful
foreclosure and breach of NRS 116.1113 claims. (ECF No. 45).
instant motions, BANA and the HOA both move for summary
judgment seeking to quiet title in their favor. (ECF Nos. 36,
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 nonmoving 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.
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