United States District Court, D. Nevada
C. JONES United States District Judge.
case arises from the foreclosure of a residential property
pursuant to a homeowners association lien. Now pending before
the Court is Plaintiff Bank of America's Motion for
Summary Judgment. (ECF No. 30.) For the reasons given herein,
the Court grants the motion.
FACTS AND PROCEDURAL BACKGROUND
about October 9, 2008, non-party Michael R. Toscano purchased
a home located at 1980 Dickerson Road, Reno, Nevada, 89503
(“the Property”), subject to the Covenants,
Conditions, and Restrictions (“CC&Rs”) of
Toscano River Townhomes Association, Inc. (“the
HOA”). (Compl. ¶¶ 8, 14, ECF No. 1.) The Deed
of Trust (“DOT”) identified Summit Funding, Inc.
as the lender, Mortgage Electronic Registration Systems, Inc.
(“MERS”) as the beneficiary, First Centennial
Title Company of Nevada as the trustee, and a secured amount
of $314, 128. (Deed of Trust, ECF No. 30-1.) By an assignment
recorded on October 3, 2011, MERS transferred its interest in
the Property to Bank of America. (Assignment, ECF No. 30-2.)
September 25, 2013, Defendant ATC Assessment Collection
Group, LLC (“ATC”)- as the HOA's
agent-recorded a Notice of Default and Election to Sell
against the Property, due to Mr. Toscano's failure to pay
HOA dues. (Compl. ¶¶ 17-18.) On October 30, 2013,
Bank of America-through its agent Miles, Bauer, Bergstrom
& Winters, LLP (“Miles Bauer”)- requested a
current HOA superpriority lien payoff demand and account
ledger from ATC. (Compl. ¶ 26; Ledger Request, ECF No.
30-6 at 6-7.) ATC responded to the request by sending an
itemized owner ledger for the Property, but did not
specifically provide the amount of the HOA's
superpriority lien. (Compl. ¶ 26; Owner Ledger, ECF No.
30-6 at 9-11.) Therefore, based on the $265 monthly
assessments appearing in the ledger, Miles Bauer calculated
the superpriority amount of the HOA's lien to be $2, 385.
(Compl. ¶ 27-28.) On December 6, 2013, Miles Bauer
tendered this amount to ATC in an attempt to protect the DOT
from extinguishment at the impending foreclosure sale.
(Id.; Tender Letter, ECF No. 30-6 at 13-14; Check,
ECF No. 30-6 at 15.) It is undisputed that the tender was
rejected. (See Resp. 5, ECF No. 31.)
August 5, 2014, a foreclosure deed was recorded with
Defendant Remedy Property Partners, LLC
(“Remedy”) named as grantee. Despite an appraised
value of $198, 000, Remedy paid just $9, 000 at the
foreclosure sale. (Appraisal Report, ECF No. 30-9 at 5-7;
Foreclosure Deed, ECF No. 30-7 at 65-66.) Remedy took the
foreclosure deed “without warranty expressed or
implied.” (Foreclosure Deed.) Soon thereafter, by an
assignment recorded on August 11, 2014, Remedy transferred
its interest in the Property to Defendant Comstock Capital
Partners, LLC (“Comstock”). (Deed of Sale, ECF
No. 30-10.) The conveyance to Comstock was also
“without warranty, express or implied.”
America alleges four causes of action in its Complaint: (1)
quiet title/declaratory judgment against all Defendants; (2)
breach of N.R.S § 116.1113 against the HOA and ATC; (3)
wrongful foreclosure against the HOA and ATC; and (4)
injunctive relief against Comstock. Bank of America now moves
for summary judgment. (ECF No. 30.)
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.”
Tender of the Superpriority Piece of ...