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CitiMortgage, Inc. v. Corte Madera Homeowners Association

United States District Court, D. Nevada

June 14, 2017



         Presently before the court is plaintiff CitiMortgage, Inc.'s (“Citi”) motion for summary judgment. (ECF No. 30). Defendant Corte Madera Homeowners Association (the “HOA”) (ECF No. 34) and defendants/counterclaimants Susan Patchen (“Patchen”) and the Eagle and the Cross LLC (“Eagle” and collectively, with Patchen, as “counterclaimants”) (ECF No. 35) filed responses, to which Citi replied (ECF No. 39).

         Also before the court is counterclaimants' motion for summary judgment. (ECF No. 31). Citi filed a response (ECF No. 36), to which counterclaimants replied (ECF Nos. 42, 44).

         I. Facts

         This case involves a dispute over real property located at 2517 Danborough Court, Unit 106, Las Vegas, Nevada 89106 (the “property”). On June 3, 2006, Kathy J. Horton refinanced the property by way of a loan in the amount of $120, 100.00, which was secured by a deed of trust recorded June 13, 2006. (ECF No. 1).

         The deed of trust was assigned to Bank of America Home Loans via an assignment of deed of trust recorded December 24, 2009. (ECF No. 1). The deed of trust was assigned to Citi via an assignment of deed of trust recorded June 26, 2013. (ECF No. 1). A corrective assignment of deed of trust was recorded on August 8, 2014, correcting Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP (“BANA”) in place of Bank of America Home Loans. (ECF No. 1).

         On July 2, 2013, defendant Nevada Association Services, Inc. (“NAS”), acting on behalf of the HOA, recorded a notice of delinquent assessment lien, stating an amount due of $1, 649.22. (ECF No. 1). On October 11, 2013, NAS recorded a notice of default and election to sell to satisfy the delinquent assessment lien, stating an amount due of $2, 955.10. (ECF No. 1).

         On November 11, 2013, BANA requested a ledger from the HOA/NAS identifying the superpriority amount allegedly owed to the HOA. (ECF No. 1). The HOA/NAS allegedly refused to provide a ledger. (ECF No. 1).

         On April 18, 2014, NAS recorded a notice of trustee's sale, stating an amount due of $4, 399.56. (ECF No. 1). On May 16, 2014, Patchen purchased the property at the foreclosure sale for $11, 100.00. (ECF No. 1). A trustee's deed upon sale in favor of Patchen was recorded May 19, 2014. (ECF No. 1).

         Thereafter, Patchen quitclaimed her interest in the property to Eagle via a quitclaim deed recorded March 18, 2015. (ECF No. 1).

         On February 26, 2016, Citi filed the underlying complaint, alleging four causes of action: (1) quiet title/declaratory judgment against all defendants; (2) breach of NRS 116.1113 against NAS and the HOA; (3) wrongful foreclosure against NAS and the HOA; and (4) injunctive relief against Eagle. (ECF No. 1).

         On May 2, 2016, counterclaimants filed a counterclaim against Citi and third-party complaint against Mortgage Electronic Registrations Systems, Inc. (“MERS”) for quiet title and injunctive relief. (ECF No. 19).[1]

         In the instant motions, Citi and counterclaimants move for summary judgment. (ECF Nos. 30, 31). The court will address each as it sees fit.

         II. Legal Standard

         The Federal Rules of Civil Procedure allow summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). 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).

         For purposes of summary judgment, disputed factual issues should be construed in favor of the non-moving party. Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be entitled to a denial of summary judgment, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Id.

         In determining summary judgment, a court applies a burden-shifting analysis. 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. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).

         By 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 non-moving 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, 159- 60 (1970).

         If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. 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 that are unsupported by factual data. 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 Celotex, 477 U.S. at 324.

         At summary judgment, 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 v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 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. . .

         III. Discussion [2]

         A. Claims (2) through (4) & Counterclaim (2)

         As an initial matter, the court dismisses, without prejudice, claims (2) through (4) of Citi's complaint (ECF No. 1) and claim (2) of the counterclaim (ECF No. 19).

         Claims (2) and (3) of Citi's complaint (ECF No. 1) are dismissed without prejudice for failure to mediate pursuant to NRS 38.330. See, e.g., Nev. Rev. Stat. § 38.330(1); McKnight Family, L.L.P. v. Adept Mgmt., 310 P.3d 555 (Nev. 2013).

         Citi argues that NRS 38.300 et seq. does not apply because BANA submitted a demand for mediation on November 4, 2015, but NRED failed to schedule mediation within 60 days. (ECF No. 1 at 3). The court disagrees.

         Subsection (1) of NRS 38.310 sets forth prerequisites for commencing a civil action and provides, in relevant part:

No civil action based upon a claim relating to [t]he interpretation, application or enforcement of any covenants, conditions or restrictions applicable to residential property . . . or [t]he procedures used for increasing, decreasing or imposing additional assessments upon residential property, may be commenced in any court in this State unless the action has been submitted to mediation.

Nev. Rev. Stat. § 38.310(1). Subsection (2) continues by stating that a “court shall dismiss any civil action which is commenced in violation of the provisions of subsection 1.” Nev. Rev. Stat. § 38.310(2). Subsection (1) of NRS 38.330 states that “[u]nless otherwise provided by an agreement of the parties, mediation must be completed within 60 days after the filing of the written claim.” Nev. Rev. Stat. § 38.330(1).

         While Citi claims that BANA submitted a request for mediation, the parties have not participated in mediation. Moreover, nothing in NRS 38.330 provides that NRED's failure to appoint a mediator within 60 days constitutes exhaustion, nor does the statute place the burden on NRED to complete mediation within a specified period of time. Thus, Citi has not exhausted its administrative remedies and must mediate certain claims prior to initiating an action in court.

         Further, NRS 38.350 expressly tolls the statute of limitations applicable to Citi's claims that are subject to mediation under NRS 38.310. Specifically, NRS 38.350 provides that “[a]ny statute of limitations applicable to a claim described in NRS 38.310 is tolled from the time the claim is submitted to mediation . . . until the conclusion of mediation . . . of the claim and the period for vacating the award has expired.” Nev. Rev. Stat. § 38.350. Therefore, Citi's ...

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