Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bank of America, N.A. v. Treasures Landscape Maintenance Association

United States District Court, D. Nevada

April 17, 2017

BANK OF AMERICA, N.A., Plaintiffs,


         Presently before the court is crossclaimant RLP Fern Crest, LLC, a series of Red Lizard Productions, LLC's (“Fern Crest”) motion for summary judgment. (ECF No. 48). Plaintiff Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP (“BANA”) (ECF No. 51) and crossdefendant Treasures Landscape Maintenance Association (the “HOA”) (ECF No. 55) filed responses. Fern Crest has not replied, and the period to do so has since passed.

         Also before the court is BANA's motion for summary judgment. (ECF No. 49). Fern Crest (ECF No. 53) and the HOA (ECF No. 54) filed responses, to which BANA replied (ECF No. 61).

         Also before the court is the HOA's motion for summary judgment. (ECF No. 50). BANA filed a response (ECF No. 52), to which the HOA replied (ECF No. 57).

         Also before the court is the HOA's motion to dismiss Fern Crest's answer, counterclaim, and crossclaim (ECF No. 14). (ECF No. 56). BANA filed a response. (ECF No. 62). The HOA has not replied, and the period to do so has since passed. . . . . . .

         I. Facts

         This case involves a dispute over real property located at 2913 Fern Crest Avenue, North Las Vegas, Nevada 89031 (the “property”).

         William and Amber Morris purchased the property on June 9, 2003. (ECF No. 1 at 4). To refinance the property, they obtained a loan in the amount of $235, 869.00, which was secured by a deed of trust recorded on December 10, 2008. (ECF No. 1 at 4).

         The deed of trust was assigned to BANA via an assignment deed of trust recorded April 16, 2010. (ECF No. 1 at 4).

         On May 20, 2011, defendant Nevada Association Services, Inc. (“NAS”), acting on behalf of the HOA, recorded a notice of delinquent assessment lien, stating an amount due of $1, 343.40. (ECF No. 1 at 4). On July 18, 2011, NAS recorded a notice of default and election to sell to satisfy the delinquent assessment lien, stating an amount due of $1, 975.50. (ECF No. 1 at 4).

         On May 15, 2012, NAS recorded a notice of trustee's sale, stating an amount due of $3, 146.17. (ECF No. 1 at 5). On December 14, 2012, defendant Red Lizard Productions, LLC. (“RLP”) purchased the property at the foreclosure sale for $3, 955.00. (ECF No. 1 at 5-6). A foreclosure deed in favor of RLP was recorded on December 20, 2012. (ECF No. 1 at 5).

         On November 24, 2015, RLP recorded a grant, bargain, sale deed conveying the property to Fern Crest. (ECF No. 1 at 6). Thus, Fern Crest is the current record owner of the property.

         On February 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 NAS and the HOA; (3) wrongful foreclosure against NAS and the HOA; and (4) injunctive relief against RLP and Fern Crest. (ECF No. 1). On February 17, 2017, the court dismissed claims (2) through (4) of BANA's complaint for failure to mediate pursuant to NRS 38.310. (ECF No. 70).

         On April 18, 2016, Fern Crest filed a counterclaim against BANA and crossclaims against the HOA and NAS alleging four causes of action: (1) declaratory relief/quiet title against all parties; (2) preliminary and permanent injunction against BANA from foreclosure action; (3) slander of title against BANA; and (4) unjust enrichment against all parties. (ECF No. 14).

         In the instant motions, Fern Crest, BANA, and the HOA all move for summary judgment in their favor (ECF Nos. 48, 49, 50), and the HOA moves to dismiss Fern Crest's crossclaims (ECF No. 56). The court will address each as it sees fit.

         II. Legal Standards

         A. Motion to Dismiss

         A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide “[a] short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

         “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation omitted).

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

         Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678.

         Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged-but not shown-that the pleader is entitled to relief.” Id. (internal quotation marks omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

         The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated, in relevant part:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.


         B. Motion for Summary Judgment

         The 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).

         For 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.

         In 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).

         By 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).

         If the 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. 1987).

         In 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.

         At 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. at 249-50.

         III. Discussion

         As an initial matter, the court dismisses, without prejudice, claims (2) through (4) of Fern Crest's answer, counterclaim, and crossclaim (ECF No. 14).

         Fern Crest's preliminary and permanent injunction claim (claim 2) is dismissed because the court follows the well-settled rule in that a claim for “injunctive relief” standing alone is not a cause of action. See, e.g., In re Wal-Mart Wage & Hour Emp't Practices Litig., 490 F.Supp.2d 1091, 1130 (D. Nev. 2007); Tillman v. Quality Loan Serv. Corp., No. 2:12-CV-346 JCM RJJ, 2012 WL 1279939, at *3 (D. Nev. Apr. 13, 2012) (finding that “injunctive relief is a remedy, not an independent cause of action”); Jensen v. Quality Loan Serv. Corp., 702 F.Supp.2d 1183, 1201 (E.D. Cal. 2010) (“A request for injunctive relief by itself does not state a cause of action.”). Injunctive relief may be available if Fern Crest is entitled to such a remedy on an independent cause of action.

         Fern Crest's slander of title claim (claim 3) and unjust enrichment claim (claim 4) are dismissed for the same reasons set forth in the court's February 17th order (ECF No. 70)-namely, because they are subject to NRS 38.310's mediation requirement. See Nev. Rev. Stat. § 38.310; see, e.g., Nationstar Mortg., LLC v. Berezovsky, No. 215CV909JCMCWH, 2016 WL 1064477, at *2 (D. Nev. Mar. 17, 2016) (holding that unjust enrichment claims are subject to NRS 38.310's mediation requirement); McKnight Family, L.L.P. v. Adept Mgmt., 310 P.3d 555, 559 (Nev. 2013) (holding that slander of title claims are subject to NRS 38.310 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.