United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATE HOLDERS OF CWABS, INC., ASSET BACKED CERTIFICATES, SERIES 2004-2, Plaintiff,
TOWNHOUSE SOUTH ASSOCIATION, INC. et al., Defendants.
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 are one offensive (ECF No. 41) and two defensive
(ECF Nos. 38, 40) Motions for Summary Judgment.
FACTS AND PROCEDURAL BACKGROUND
about November 6, 2003, non-party Roongtum Chongolnee
purchased a home located at 580 Smithridge Park, Reno, Nevada
89502 (“the Property”). (Compl. ¶¶ 7,
13, ECF No. 1.) The Deed of Trust (“DOT”)
identified MLSG, Inc. as the lender and beneficiary, Stewart
Title as the trustee, and a secured amount of $104, 310.
(Id. at ¶ 13.) The Property is in a planned
community and is subject to certain covenants, conditions,
and restrictions (“CC&Rs”). By an assignment
recorded on February 24, 2005, MLSG transferred its interest
in the Property to Countrywide Document Custody Services, A
Division of Treasury Bank, N.A. (Assignment, ECF No. 41-1 at
27.) By an assignment recorded on October 31, 2006, the same
interest was transferred to Countrywide Home Loans, Inc.
(Assignment, ECF No. 41-1 at 30.) At the time of the
foreclosure sale discussed below, Bank of America, N.A. was
servicer of the loan. (Pl.'s Mot. Summ. J. 3, ECF No.
March 22, 2013, Defendant E. Alan Tiras, P.C.
(“Tiras”)-as agent of Townhouse South
Association, Inc. (“the HOA”)-recorded a Notice
of Default and Election to Sell against the Property, due to
Chongolnee's failure to pay HOA dues. (Id. at
¶¶ 15-16.) On July 22, 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
Tiras. (Compl. ¶ 24; Ledger Request, ECF No. 41-1 at
48-49.) The HOA responded to the request by sending a
complete owner ledger for the Property, but did not specify
the amount of its superpriority lien. (Compl. ¶ 24;
Owner Ledger, ECF No. 41-1 at 51-55.) Therefore, based on the
$220 monthly assessments appearing throughout the ledger,
Miles Bauer calculated the superpriority amount of the
HOA's lien to be $1, 980. (Compl. ¶ 26.) On August
9, 2012, Miles Bauer tendered this amount to the HOA in an
attempt to protect the DOT from extinguishment at the
impending foreclosure sale. (Id.; Tender Letter, ECF
No. 41-4 at 57-58; Check, ECF No. 41-1 at 59.) It is
undisputed that the tender was rejected. (See Resp.
of Tiras 9, ECF No. 44; Resp. of HOA 4, ECF No. 43.)
August 15, 2013, a foreclosure deed was recorded with
Defendant Thunder Properties, Inc. (“Thunder”)
named as grantee. Despite an appraised value of $75, 000,
Thunder paid just $5, 421.59 at the foreclosure sale.
(Appraisal Report, ECF No. 41-1 at 71-73; Foreclosure Deed,
ECF No. 41-1 at 65-66.) Thunder also took the foreclosure
deed “without covenants or warranty, express or
implied.” (Foreclosure Deed.) Subsequently, by an
assignment recorded on February 27, 2014, Countrywide Home
Loans, Inc. transferred its interest to Plaintiff Bank of New
York Mellon. (Assignment, ECF No. 41-1 at 32-33.)
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 Tiras; (3)
wrongful foreclosure against the HOA and Tiras; and (4)
injunctive relief against Thunder. Plaintiff, Tiras, and the
HOA have all filed motions summary judgment. (ECF Nos. 41,
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 ...