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Absolute Business Solutions, Inc. v. Mortgage Electronic Registration System Inc.

United States District Court, D. Nevada

May 23, 2017



          ROBERT AGONES United States District Judge.

         This 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.


         In 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”).

         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.

         In 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.)

         Now, 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[1] is facially unconstitutional because it violates the procedural due process rights of mortgage lenders.


         A court 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).

         In 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.

         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 (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.

         At the 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.” Id.

         III. ANALYSIS

         a. The Scope and ...

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