United States District Court, D. Nevada
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).
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).
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).
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).
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).
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).
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).
Patchen quitclaimed her interest in the property to Eagle via
a quitclaim deed recorded March 18, 2015. (ECF No. 1).
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
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).
instant motions, Citi and counterclaimants move for summary
judgment. (ECF Nos. 30, 31). The court will address each as
it sees fit.
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).
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.
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).
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).
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.
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.
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. . .
Claims (2) through (4) & Counterclaim (2)
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).
(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
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.
(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).
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.
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 ...