United States District Court, D. Nevada
before the court is plaintiff 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.
36). Defendant Ann Losee Homeowners' Association (the
“HOA”) (ECF No. 39) and defendants Arkham, LLC
and Arkham XIII, LLC (ECF No. 40) filed responses, to which
BANA replied (ECF Nos. 45, 46, respectively).
before the court is the HOA's motion for summary
judgment. (ECF No. 37). BANA filed a response (ECF No. 38),
to which the HOA replied (ECF No. 47).
case involves a dispute over real property located at 2317
Clarington Avenue, North Las Vegas, Nevada (the
“property”). On November 21, 2009, Paul Borin
obtained a loan from First Option Mortgage in the amount of
$204, 355.00, which was secured by a deed of trust recorded
on November 30, 2009. (ECF No. 1).
deed of trust was assigned to BANA via an assignment of deed
of trust recorded on November 14, 2011. (ECF No. 1).
November 19, 2013, defendant Absolute Collection Services,
LLC (“ACS”), acting on behalf of the HOA,
recorded a notice of delinquent assessment lien, stating an
amount due of $1, 668.83. (ECF No. 1). On January 8, 2014,
ACS recorded a notice of default and election to sell to
satisfy the delinquent assessment lien, stating an amount due
of $2, 385.68. (ECF No. 1).
February 3, 2014, BANA requested a ledger from the HOA/ACS
identifying the superpriority amount allegedly owed to the
HOA. (ECF No. 1). The HOA/ACS provided a ledger dated
February 19, 2014, stating a superpriority amount owed of $2,
104.35 and a total owed of $6, 553.45. (ECF No. 1). BANA
calculated the superpriority amount to be $180.00 and
tendered that amount to ACS on March 3, 2014, which the HOA
allegedly accepted. (ECF No. 1).
April 30, 2014, ACS recorded a notice of trustee's sale,
stating an amount due of $3, 843.76 and scheduling the sale
for June 17, 2014. (ECF No. 1). On June 17, 2014, defendant
Nevada New Builds, LLC (“NNB”) purchased the
property at the foreclosure sale for $9, 000.00. (ECF No. 1).
A foreclosure deed in favor of NNB was recorded on June 19,
2014. (ECF No. 1).
transferred the property to defendant Janet Garcia
(“Garcia”) by a deed of sale recorded on July 23,
2014. (ECF No. 1). Thereafter, Garcia transferred the
property to defendant Arkham, LLC (“Arkham”) by
quitclaim deed recorded on May 1, 2015. (ECF No. 1).
Subsequently, Arkham, LLC transferred the property to
defendant Arkham XIII, LLC (“Arkham XIII”) by a
grant, bargain, sale deed recorded on May 11, 2015. (ECF No.
February 26, 2016, BANA filed the underlying complaint,
alleging four claims of relief: (1) quiet title/declaratory
judgment against all defendants; (2) breach of NRS 116.1113
against ACS and the HOA; (3) wrongful foreclosure against ACS
and the HOA; and (4) injunctive relief against Arkham XIII.
(ECF No. 1).
20, 2016, Arkham and Arkham XIII filed a counterclaim against
BANA alleging two claims for relief: (1) quiet title; and (2)
cancellation of instruments. (ECF No. 26).
December 19, 2016, the court dismissed claims (2) through (4)
of BANA's complaint. (ECF No. 35).
instant motions, BANA and the HOA both move for summary
judgment. (ECF Nos. 36, 37). 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 takes judicial notice of the
following recorded documents: first deed of trust (ECF No.
36-1); the assignment of deed of trust (ECF No. 36-3); notice
of delinquent assessment (ECF No. 36-4); notice of default
and election to sell (ECF Nos. 36-5, 36-6); notice of
trustee's sale (ECF No. 36-7); and trustee's deed
upon sale (ECF No. 36-10). See, e.g., United States v.
Corinthian Colls., 655 F.3d 984, 998-99 (9th Cir. 2011)
(holding that a court may take judicial notice of public
records if the facts noticed are not subject to reasonable
dispute); Intri-Plex Tech., Inv. v. Crest Grp.,
Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). . . . . . . .
116.3116(1) of the Nevada Revised Statutes gives an HOA a
lien on its homeowners' residences for unpaid assessments
and fines; moreover, NRS 116.3116(2) gives priority to that
HOA lien over all other liens and encumbrances with limited
exceptions-such as “[a] first security interest on the
unit recorded before the date on which the assessment sought
to be enforced became delinquent.” Nev. Rev. Stat.
statute then carves out a partial exception to subparagraph
(2)(b)'s exception for first security interests.
See Nev. Rev. Stat. § 116.3116(2). In SFR
Investment Pool 1 v. U.S. Bank, ...