United States District Court, D. Nevada
AGONES United States District Judge.
case arises out of a homeowners association foreclosure sale.
Now pending before the Court is a Motion to for Summary
Judgment. (ECF No. 65.) For the reasons given herein, the
Court grants the motion.
FACTS AND PROCEDURAL HISTORY
2005, Irma Mendez (“Plaintiff”) purchased real
property at 3416 Casa Alto Ave., North Las Vegas, Nevada,
89031 (the “Property”) for $315, 000, giving the
lender a promissory note for $252, 792 and a Deed of Trust
(“DOT”) against the Property securing the note.
When Mendez became delinquent on her monthly assessment fees,
Alessi & Koenig (“Alessi”) conducted a
trustee's sale to Absolute Business Solutions, Inc.
(“ABS”), on behalf of Fiesta Del Norte Homeowners
Association (the “HOA”).
sale has given rise to three lawsuits now pending before this
Court: Mendez v. Fiesta Del Norte Homeowners
Ass'n, 2:15-cv-00314 (filed Feb. 23, 2015)
(“the ‘314 Case”); Absolute Bus. Sols.,
Inc. v. Mortg. Elec. Registration Sys., Inc.,
2:15-cv-01325 (filed July 13, 2015) (“the ‘1325
Case”); and the instant case, Mendez v. Wright,
Findlay and Zak LLP, 2:15-cv-01077 (filed May 13, 2016)
(“the ‘1077 Case”). The procedural
background of these cases was detailed in the Court's
August 3, 2016 Order deciding several motions in this case,
(ECF No. 57), and need not be fully reproduced here.
brief, this case involves claims brought by Absolute Business
Solutions, Inc. (“ABS”) for quiet title,
preliminary injunctive relief, and a declaratory judgment
that ABS is the rightful holder of title to the Property free
of all other liens and encumbrances. When Federal National
Mortgage Association (“Fannie Mae”), and the
Federal Housing Finance Agency (“FHFA”)
intervened as defendants, they filed quiet title and
declaratory judgment counterclaims against ABS. (ECF Nos. 9,
18.) Fannie Mae also asserted a claim for unjust enrichment.
(ECF No. 9.)
Fannie Mae and FHFA move for summary judgment based on the
Ninth Circuit's opinion in Bourne Valley Court Trust
v. Wells Fargo Bank, NA, 832 F.3d 1154 (9th Cir. 2016),
which established that the “opt-in notice scheme”
of NRS 116.3116 is facially unconstitutional because it
violates the procedural due process rights of mortgage
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 contradicted by the record
as a whole that no reasonable jury could believe it, “a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”
The Scope and ...