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Bank of America, N.A. v. Toscano River Townhomes Association, Inc.

United States District Court, D. Nevada

May 23, 2017

BANK OF AMERICA, N.A., Plaintiff,


          ROBERT C. JONES United States District Judge.

         This 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.


         On or 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.)

         On 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.)

         On 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.” (Id.)

         Bank of 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.)


         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. Tender of the Superpriority Piece of ...

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