United States District Court, D. Nevada
before the court is plaintiff/counterdefendant Bank of
America, N.A., successor by merger to BAC Home Loans
Servicing, LP f/k/a Countrywide Home Loans Servicing,
LP's (“BANA”) motion for summary judgment.
(ECF No. 24). Defendants/counterclaimants Premier One
Holdings, Inc. (“Premier”) and Weisun Property,
Inc. (“Weisun”) filed a response (ECF No. 25), to
which BANA replied (ECF No. 27).
case involves a dispute over real property located at 6700
Prairie Dusk Drive, Las Vegas, Nevada 89122 (the
“property”). On June 28, 2010 Dawn Garrett
obtained a loan in the amount of $168, 992.00 to purchase the
property, which was secured by a deed of trust recorded on
June 28, 2010. (ECF No. 1).
deed of trust was assigned to BANA via an assignment of deed
of trust recorded on June 7, 2011. (ECF No. 1).
24, 2011, defendant Nevada Association Services, Inc.
(“NAS”), acting on behalf of defendant Copper
Creek Estates Homeowners Association (the “HOA”),
recorded a notice of delinquent assessment lien, stating an
amount due of $1, 134.70. (ECF No. 1). On August 24, 2011,
NAS recorded a notice of default and election to sell to
satisfy the delinquent assessment lien, stating an amount due
of $2, 339.50. (ECF No. 1).
October 2011, BANA requested a ledger from the HOA/NAS
identifying the superpriority amount allegedly owed to the
HOA. (ECF No. 1). The HOA/NAS allegedly refused to provide a
ledger. (ECF No. 1). BANA calculated the superpriority amount
to be $630.00 and tendered that amount to NAS on December 21,
2011, which NAS allegedly refused. (ECF No. 1).
16, 2013, NAS recorded a notice of trustee's sale,
stating an amount due of $5, 208.58. (ECF No. 1). On
September 13, 2013, Premier purchased the property at the
foreclosure sale for $11, 000.00. (ECF No. 1). A
trustee's deed upon sale in favor of Premier was recorded
on September 13, 2013. (ECF No. 1).
form deed of trust was recorded against the property in favor
of Weisun on October 16, 2014. (ECF No. 1).
March 2, 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 Premier. (ECF No. 1).
29, 2016, Premier filed an answer and counterclaim against
BANA for quiet title and declaratory relief. (ECF No. 20).
instant motion, BANA move for summary judgment on its claims
against the HOA, NAS, Premier, and Weisun, as well as against
Premier and Weisun's counterclaims against BANA. (ECF No.
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.
Claims (2) through (4)
initial matter, the court dismisses, without prejudice,
claims (2) through (4) of BANA's complaint (ECF No. 1).
(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). Subsection (1) of NRS
38.310 sets forth prerequisites for commencing a civil action
and provides, in relevant part:
No civil action based upon a claim relating to [t]he
interpretation, application or enforcement of any covenants,
conditions or restrictions applicable to residential property
. . . or [t]he procedures used for increasing, decreasing or
imposing additional assessments upon residential property,
may be commenced in any court in this State unless the action
has been submitted to mediation.
Nev. Rev. Stat. § 38.310(1). Subsection (2) continues by
stating that a “court shall dismiss any civil action
which is commenced in violation of the provisions of