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
2005, Walter and Janet Coopman refinanced a loan against real
property at 5593 Churchill Green Drive, Sparks, Nevada 89436
(“the Property”), giving a $236, 250 promissory
note (“the Note”) and deed of trust (“the
DOT”) to a predecessor-in-interest of Nationstar
Mortgage, LLC (“Nationstar”). (Compl.
¶¶ 6, 12-13, ECF No. 1). Casitas on the Green
Homeowners' Association (“the HOA”) auctioned
the Property to Thunder Properties, Inc.
(“Thunder”) for $13, 100 on or about March 28,
2014. (Id. ¶¶ 23-24). Nationstar has sued
the HOA and Thunder in this Court to quiet title to the
Property. Nationstar also brings claims against the HOA for
violation of Nevada Revised Statutes section
(“NRS”) 116.1113 and common law wrongful
foreclosure. Nationstar has moved for offensive summary
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 non-moving 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.”
116.1113 and Wrongful Foreclosure
Court denies summary judgment on the claims under NRS
116.1113 and the common law of wrongful foreclosure. No
evidence is adduced of Nationstar having mediated or
arbitrated the propriety of the foreclosure under the
HOA's governing documents, so the Court cannot grant
offensive summary judgment on the NRS 116.1113 claim. See
McKnight Family, L.L.P. v. Adept Mgmt., 310
P.3d 555, 558 (Nev. 2013) (en banc) (citing Nev. Rev. Stat.
§ 38.310)). And there is no evidence of a wrongful
foreclosure under the common law, because it does not appear
disputed that there remained a default on the HOA dues as of
the date of sale, i.e., at least as to the subpriority piece,
regardless of whether the superpriority piece had been
tendered. See Collins v. Union Fed. Sav. & Loan
Ass'n, 662 P.2d 610, 623 (Nev. 1983). Indeed, in the
present case, Nationstar does not even appear to argue having
tendered the superpriority piece of the HOA lien prior to
sale. In any case, Nationstar does not appear to argue these
causes of action in its present motion.
motion is directed primarily to the quiet title claim. It
argues that the opt-in notice scheme of Chapter 116 as it
existed on the date of foreclosure was 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 (9th Cir. 2016),
that the sale was commercially unreasonable under Shadow
Wood Homeowners Association, Inc. v. N.Y. Community Bancorp,
Inc., 366 P.3d 1105 (Nev. 2016) and/or Levers v. Rio
King Land & Investments Co., 560 P.2d ...