United States District Court, D. Nevada
U.S. BANK, NATIONAL ASSOCIATION, Plaintiff,
NV EAGLES, LLC et al., Defendants.
C. JONES, UNITED STATES DISTRICT JUDGE
case arises from the foreclosure of a residential property
pursuant to a homeowners association lien. Pending before the
Court are three offensive Motions for Summary Judgment (ECF
Nos. 130, 131, 147), one defensive Motion for Summary
Judgment (ECF No. 134), and a Motion to File Excess Pages
(ECF No. 132).
FACTS AND PROCEDURAL BACKGROUND
27, 2006, Michael Cress purchased a home located at 517 W.
Mesquite Boulevard #1524, Mesquite, Nevada 89027 (“the
Property”). (Am. Compl. ¶¶ 8, 12, ECF No.
55.) The Deed of Trust (“DOT”) executed
identified GreenPoint Mortgage Funding, Inc. as the lender,
MERS as the beneficiary, Marin Conveyance Corp. as the
trustee, and a secured amount of $148, 000. (Id. at
¶ 13.) The Property is in a planned community and is
subject to certain covenants, conditions, and restrictions
(“CC&Rs”). On May 31, 2012, Defendant Nevada
Association Services, Inc. (“NAS”)-as agent of
Sandstone Condominiums Homeowners Association
(“HOA”)-recorded a Notice of Default and Election
to Sell against the Property, due to Cress's failure to
pay HOA dues. (Id. at ¶ 18.)
2012, Bank of America, the prior beneficiary and servicer of
the loan and Plaintiff U.S. Bank's
predecessor-in-interest, requested a current HOA lien payoff
demand and account ledger from NAS. (Id. at ¶
19.) Bank of America was then informed by NAS that NAS was
not willing to provide a current payoff ledger due to a
concern of violating the Fair Debt Collection Practices Act.
(Id. at ¶ 20.) In the midst of these payoff
ledger discussions, on July 30, 2012, U.S. Bank obtained all
beneficial interest in the Property via recorded assignment.
(Id. at ¶ 14.) Despite the assignment to U.S.
Bank, however, Bank of America continued to seek, through its
agent Miles Bauer Bergstrom & Winters LLP (“Miles
Bauer”), to satisfy the superpriority portion of the
HOA's lien. Based on information about the assessments
charged on similar properties within the HOA, Bank of America
estimated the HOA's lien plus reasonable collection costs
to be about $2, 036.33. (Id. at ¶ 21.) On
August 9, 2012, Miles Bauer tendered this amount to NAS in an
attempt to protect what was now U.S. Bank's interest in
the Property. (Id. at ¶ 22.) On August 10,
2012, NAS informed Miles Bauer that its tender was rejected.
(Id. at ¶ 23.)
January 22, 2013, NAS recorded a Notice of Foreclosure Sale
against the Property at the HOA's direction.
(Id. at ¶ 24.) On May 21, 2013, a Foreclosure
Deed was recorded with Defendant Underwood Partners, LLC
(“Underwood”) named as the grantee. Despite an
appraised value of $79, 500, Underwood paid just $9, 000 for
the Property at the foreclosure sale. (Appraisal Report, ECF
No. 146-13; Am. Compl. ¶¶ 25-26.) Underwood also
took the foreclosure deed without warranty. (Foreclosure
Deed, ECF No. 130-1 at 46.) Subsequently, on October 18,
2013, Underwood Partners sold the Property to Defendant NV
Eagles, LLC. (Am. Compl. ¶ 27; Sale Deed, ECF 148-8.)
Underwood and NV Eagles are “parent and direct
subsidiary, ” both with the same business address in
Newport Beach, California. (Declaration of Value, ECF No.
148-8 at 5.) Moreover, although it is Underwood that appears
as the grantee on the Foreclosure Deed, NV Eagles states, in
its own opposition brief: “[NV] Eagles is an innocent
third-party purchaser, having paid $9, 000 at the
trustee's sale.” (Resp. 18, ECF No. 150.)
alleges ten causes of action in its First Amended Complaint
(“FAC”): (1) voidable transfer under N.R.S.
§ 112.190; (2) voidable transfer under N.R.S. §
112.180 against Underwood and NV Eagles; (3) declaratory
relief; (4) quiet title; (5) wrongful foreclosure against the
HOA and NAS; (6) negligence against the HOA and NAS; (7)
breach of contract against the HOA and NAS; (8) unjust
enrichment against Underwood, NV Eagles, the HOA, and NAS;
(9) breach of the covenant of good faith and fair dealing
against the HOA and NAS; (10) declaratory relief that N.R.S.
§ 116.3116 et seq. violates the Fifth Amendment
to the Nevada and U.S. Constitutions.
Bank has moved for offensive summary judgment in multiple
motions, (ECF Nos. 130, 131, 147), and NV Eagles has moved
for defensive summary judgment on all claims in the FAC, (ECF
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 ...