United States District Court, D. Nevada
C. JONES, United States District Judge
case arises out of a homeowners' association foreclosure
sale. Pending before the Court is a motion for summary
FACTS AND PROCEDURAL HISTORY
2004, Kehar Singh gave an unidentified lender a promissory
note for $168, 373 (“the Note”) to purchase real
property at 9658 Black Bear Drive, Reno, Nevada, 89506
(“the Property”), which was secured by a deed of
trust (“the DOT”) against the Property.
(See Compl. ¶¶ 8, 13, ECF No. 1). The DOT
was later assigned to Plaintiff Wells Fargo Bank, N.A.
(“Wells Fargo”). (Id. ¶ 14). Singh
has defaulted with over $156, 598.15 due on the Note, and
Wells Fargo intends to foreclose the DOT against the
Property. (Id. ¶¶ 15-17).
The Sky Vista Homeowners' Association (“the
HOA”) has completed its own foreclosure sale, however.
(See Id. ¶¶ 2, 18-29). The HOA caused Kern
& Associates, Ltd. to record a notice of delinquent
assessment lien (“the NDAL”) as to the Property
in 2011 indicating that $1, 088 was due, which amount
included late charges, fees, fines, foreclosure fees,
transfer fees, attorney's fees, costs, and other charges.
(Id. ¶ 18). The HOA later caused Phil Frink
& Associates, Inc. (“Frink”) to record a
notice of default and election to sell (“the
NOD”) indicating that $2, 259.30 was due, without
specifying what amount was due for assessment fees versus
interest, fees, collection costs, etc., and without
specifying the superpriority amount of the HOA's lien.
(Id. ¶ 19). The HOA later caused Frink to
record a notice of trustee's sale (“the NOS”)
scheduling a sale for May 10, 2012 and indicating that $3,
886.84 was due, without specifying what amount was due for
assessment fees versus interest, fees, collection costs,
etc., and without specifying the superpriority amount of the
HOA's lien. (Id. ¶ 20). In May 2012, the
previous servicer, Bank of America, N.A., contacted Frink and
demanded a payoff ledger identifying the superpriority amount
of the HOA's lien, but Frink refused to provide any
information, thereby rejecting the attempted tender of the
superpriority amount before the HOA foreclosure sale.
(Id. ¶¶ 26-27). On March 29, 2013, the HOA
sold the Property to Defendant TBD, LLC for $4, 367, less
than 3% of the outstanding principal balance on the Note.
(Id. ¶¶ 3, 28-29). Defendant TBR I, LLC
purchased the Property from TBD on December 27, 2013.
(Id. ¶ 4).
Fargo (as Indenture Trustee for the Registered Holders of IMH
Assets Corp., Collateralized Asset-Backed Bonds, Series
2004-11) sued the HOA, TBD, and TBR I in this Court for: (1)
quiet title; (2) violation of Nevada Revised Statutes section
(“NRS”) 116.1113; and (3) common law wrongful
foreclosure. Wells Fargo asks the Court in the alternative to
set aside the HOA foreclosure sale, declare that the HOA
foreclosure sale did not extinguish the DOT, or award damages
resulting from the extinguishment of the DOT in violation of
moved to dismiss based on Wells Fargo's failure to abide
by state law pre-litigation exhaustion requirements. The
Court denied the motion because non-exhaustion is an
affirmative defense, and facts indicating non-exhaustion did
not appear on the face of the Complaint. TBD and TDR I
answered and counterclaimed for quiet title. (See
Answer and Countercl., ECF No. 14). The HOA separately
answered without pleading any counterclaims. (See
Answer, ECF No. 20). TBD and TBR I later asked the Court to
dismiss the quiet title claim against them and to substitute
TBR I's grantee Airmotive Investments, LLC
(“Airmotive”) as a Defendant under Rule 25(c).
The Court granted the motion. Wells Fargo has now moved for
offensive summary judgment.
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 need not 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
opposing 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 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. 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.”
seeks summary judgment on its quiet title claim on the bases
that Chapter 116's notice scheme is facially
unconstitutional, see Bourne Valley Court Tr. v. Wells
Fargo Bank, N.A., 832 F.3d 1154, 1156 (9th Cir. 2016),
that it tendered the superpriority amount of the HOA's
lien prior to sale such that the DOT survived the sale,
see U.S. Bank, N.A. v. SFR Invs. Pool I, LLC, No.
3:15-cv-241, 2016 WL 4473427 (D. Nev. Aug. 24, ...