United States District Court, D. Nevada
before the court is counterclaimant TRP Fund V, LLC's
(“TRP”) motion for summary judgment. (ECF No.
54). Defendant Log Cabin Ponderosa Homeowners Association
(the “HOA”) (ECF No. 60) and
plaintiff/counterdefendant Bank of America, N.A., successor
by merger to BAC Home Loans Servicing, LP f/k/a Countrywide
Home Loans Servicing, LP (“BANA”) (ECF No. 65)
filed responses, to which TRP replied (ECF No. 68).
before the court is BANA's motion for summary judgment.
(ECF No. 57). The HOA (ECF No. 61) and TRP (ECF No. 66) filed
responses, to which BANA replied (ECF No. 67).
case involves a dispute over real property located at 10342
Hanky Panky Street, Las Vegas, Nevada 89131 (the
“property”). On July 21, 2009, Christopher and
Jennifer Glover obtained a loan from DHI Mortgage Company,
Ltd in the amount of $406, 978.00 to purchase the property,
which was secured by a deed of trust recorded on July 24,
2009. (ECF No. 1 at 4).
deed of trust was assigned to BANA via an assignment of deed
of trust recorded on March 6, 2012. (ECF No. 1 at 4).
August 29, 2013, 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, 757.62. (ECF No. 1 at 4). On October 11, 2013, NAS
recorded a notice of default and election to sell to satisfy
the delinquent assessment lien, stating an amount due of $2,
689.28. (ECF No. 1 at 4).
November 13, 2013, BANA requested a ledger from the HOA/NAS
identifying the superpriority amount allegedly owed to the
HOA. (ECF No. 1 at 5). NAS provided a ledger dated March 1,
2014, identifying the total amount allegedly owed. (ECF No. 1
at 5). BANA calculated the superpriority amount to be $522.00
and tendered that amount to NAS on March 13, 2014, which NAS
allegedly refused. (ECF No. 1 at 6).
25, 2014, NAS recorded a notice of trustee's sale,
stating an amount due of $3, 863.46. (ECF No. 1 at 5). On
August 22, 2014, defendant MRT Assets, LLC
(“MRT”) purchased the property at the foreclosure
sale for $62, 000.00. (ECF No. 1 at 6). A trustee's deed
upon sale in favor of MRT was recorded on August 25, 2014.
(ECF No. 1 at 6).
MRT conveyed its interest in the property to TRP via a
quitclaim deed recorded February 23, 2015. (ECF No. 1 at 6).
Thus, TRP is the current record owner of the property.
February 25, 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 TRP. (ECF No.
1). On March 2, 2016, TRP filed an answer, counterclaim and
third-party complaint to quiet title. (ECF No. 6).
instant motions, TRP and BANA move for summary judgment. (ECF
Nos. 54, 57). The court will address each as it sees fit.
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.
initial matter, the court dismisses, without prejudice,
counts (2) through (4) of BANA's complaint. Counts (2)
and (3) are dismissed without prejudice for failure to
mediate pursuant to NRS 38.330. See, e.g., Nev. Rev.
Stat. § 38.330(1); McKnight Family, L.L.P. v. Adept
Mgmt., 310 P.3d 555 (Nev. 2013). Count (4) is dismissed
without prejudice 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.”)
Motions for Summary Judgment
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
others. See also Breliant v. Preferred Equities
Corp., 918 P.2d 314, 318 (Nev. 1996) (“In a quiet
title action, the burden of proof rests with the plaintiff to
prove good title in himself.”).