United States District Court, D. Nevada
U.S. BANK, NATIONAL ASSOCIATION, Plaintiff,
COUNTRYSIDE HOMEOWNERS ASSOCIATION et al., Defendants.
C. JONES, UNITED STATES DISTRICT JUDGE
case arises out of a homeowners' association foreclosure
sale. Pending before the Court is a Motion for Summary
Judgment (ECF No. 48). The Court grants the motion.
FACTS AND PROCEDURAL HISTORY
2005, Jayson Barangan gave Countrywide Home Loans, Inc.
(“Countrywide”) a promissory note for $228, 800
(the “Note”) to purchase real property at 8543
Ebony Hills Way, Las Vegas, Nevada, 89123 (the
“Property”), secured by a deed of trust (the
“DOT”) against the Property. (Compl. ¶¶
7, 12, ECF No. 1). The DOT was later assigned to Plaintiff
U.S. Bank, National Association (“US Bank”).
(Id. ¶ 13). Barangan has defaulted with over
$228, 580.16 due on the Note, and U.S. Bank intends to
foreclose the DOT against the Property. (Id.
Countryside Homeowners' Association (“the
HOA”) has completed its own foreclosure sale, however.
(See Id. ¶¶ 2, 17-27). The HOA caused its
agent Nevada Association Services (“NAS”), to
record a notice of delinquent assessment lien (the
“NDAL”) in 2010 indicating that $738 was due,
which amount included late fees, collection fees, and
interest totaling $554. (Id. ¶ 17). The HOA
later caused NAS to record a notice of default and election
to sell (the “NOD”), indicating that $1, 773 was
due, without specifying what amount was due for assessment
fees versus interest, collection costs, etc., and without
specifying the superpriority amount of the HOA's lien.
(Id. ¶ 18). The HOA later caused NAS to record
a notice of sale (the “NOS”), scheduling a sale
for June 24, 2011 and indicating that $3, 116.42 was due,
without specifying what amount was due for assessment fees
versus interest, collection costs, etc., and without
specifying the superpriority amount of the HOA's lien.
(Id. ¶ 19). On January 6, 2012, the HOA sold
the Property to itself for $5, 259.27, less than 3% of the
outstanding principal balance on the Note. (Id.
¶¶ 25-26). Defendant KK Real Estate Investment
Fund, LLC (“KK”) obtained the Property from the
HOA via quitclaim deed on May 7, 2013. (Id.
¶¶ 3, 27).
sued the HOA and KK in this Court for: (1) quiet title based
on, inter alia, violations of due process and
commercial unreasonableness; (2) violation of Nevada Revised
Statutes section (“NRS”) 116.1113; and (3) common
law wrongful foreclosure, asking the Court in the alternative
to set aside the sale or to declare that it did not
extinguish the DOT. KK filed counterclaims for quiet title and
cancellation of instruments. The HOA moved to dismiss, and
the Court denied the motion, ruling: (1) although Barangan
might be entitled to intervene if he were to so move under
Rule 24, he was not a necessary party under Rule 19; (2) the
affirmative defense of non-exhaustion under NRS 38.310 did
not appear on the face of the Complaint; and (3)
noncompliance with Chapter 116 and bad faith with respect to
the Covenants, Conditions, and Restrictions
(“CC&R”) had been sufficiently alleged. The
HOA moved for defensive summary judgment. The Court denied
the motion. U.S. Bank has now moved for offensive summary
judgment against the HOA and KK.
SUMMARY JUDGMENT STANDARDS
must grant summary judgment when “the movant shows 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). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. 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).
determining summary judgment, a court uses a burden-shifting
scheme. 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.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In 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 nonmoving 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.
moving party fails to meet its initial burden, summary
judgment must be denied and the court needn't consider
the nonmoving party's evidence. See Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970). If the moving
party meets its initial burden, the burden then shifts to the
nonmoving party to establish a genuine issue of material
fact. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). To establish the
existence of a factual dispute, the nonmoving 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. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
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 Fed. R. Civ. P. 56(e); Celotex
Corp., 477 U.S. at 324.
summary judgment stage, 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, 477 U.S. at 249. 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. at 249-50. Notably, facts are only viewed in
the light most favorable to the nonmoving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even where
the underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, “a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”
Court grants offensive summary judgment to U.S. Bank based on
the Court of Appeals' intervening decision holding that
Chapter 116's opt-in notice scheme is facially
unconstitutional under the Due Process Clause of the
Fourteenth Amendment. See Bourne Valley Court Tr. v.
Wells Fargo Bank, N.A.,832 F.3d 1154, 1160 (9th Cir.
2016). The Court of Appeals has denied a motion to rehear the
case en banc. Defendants provide no evidence of
actual notice in this case. KK's counterclaims for quiet
title and cancellation of U.S. Bank's deed of trust
necessarily fail given U.S. Bank's victory on its quiet
title claim. Unless U.S. Bank wishes to further ...