United States District Court, D. Nevada
before the court is plaintiff Bank of America, N.A.,
successor by merger to BAC Home Loans Servicing, LP f/k/a
Countrywide Home Loans Servicing, LP's
(“BANA”) motion for summary judgment. (ECF No.
30). Defendants Las Vegas Development Group, LLC
(“LVDG”) (ECF No. 40) and Antelope
Homeowners' Association (the “HOA”) (ECF No.
41) filed responses, to which BANA replied (ECF Nos. 59, 60).
before the court is the HOA's motion for summary
judgment. (ECF No. 31). BANA filed a response (ECF No. 39), to
which the HOA replied (ECF No. 42).
before the court is a stipulation to stay the case. (ECF No.
case involves a dispute over real property located at 7828
Garden Rock St., Las Vegas, NV 89149 (the
2, 2008, Tony Barrios, Justo Barrios, and Kristina Barrios
obtained a loan from Universal American Mortgage Company, LLC
in the amount of $214, 621.00, which was secured by a deed of
trust recorded on July 14, 2008. (ECF No. 1 at 3-4). The note
and deed of trust are insured by the Federal Housing
Administration (“FHA”). (ECF No. 1 at 4).
25, 2009, defendant Alessi & Koenig, LLC
(“A&K”), acting on behalf of the HOA,
recorded a notice of delinquent assessment lien, stating an
amount due of $1, 002.74. (ECF No. 1 at 4). On August 31,
2009, A&K recorded a notice of default and election to
sell to satisfy the delinquent assessment lien, stating an
amount due of $1, 921.79. (ECF No. 1 at 4).
August 9, 2010, A&K recorded a notice of trustee's
sale, stating an amount due of $4, 078.25 and scheduling the
trustee's sale for September 8, 2010. (ECF No. 1 at 4).
March 2, 2011, Las Vegas Development Group, LLC
(“LVDG”) purchased the property at the
foreclosure sale for $4, 666.00. (ECF No. 1 at 5). A
foreclosure deed in favor of LVDG was recorded on March 11,
2011. (ECF No. 1 at 5).
the foreclosure sale extinguished the deed of trust, the deed
was assigned to BAC Home Loans Servicing, LP f/k/a
Countrywide Home Loans Servicing, LP (“BAC”) via
an assignment of deed of trust recorded June 20, 2011. (ECF
No. 1 at 4). BAC merged into BANA effective July 1, 2011.
(ECF No. 1 at 4).
March 2, 2016, BANA filed the underlying complaint, alleging
four claims for relief: (1) quiet title/declaratory judgment
against all defendants; (2) breach of NRS 116.1113 against
the HOA and A&K; (3) wrongful foreclosure against the HOA
and A&K; and (4) injunctive relief against LVDG. (ECF No.
entry of default as to A&K was entered on October 21,
2016. (ECF No. 33). Subsequently, on January 24, 2017, the
court dismissed claims (2) though (4) of BANA's
complaint. (ECF No. 57).
instant motions, BANA (ECF No. 30) and the HOA (ECF No. 31)
both move for summary judgment in their favor. 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.
Quiet Title/Declaratory Relief
initial matter, the court takes judicial notice of the
following recorded documents: first deed of trust (ECF No.
30-1); notice of delinquent assessment (ECF No. 30-4); notice
of default and election to sell (ECF No. 30-5); notice of
trustee's sale (ECF No. 30-6); and trustee's deed
upon sale (ECF No. 30-7). See, e.g., United
States v. Corinthian Colls., 655 F.3d 984, 998- 99 (9th
Cir. 2011) (holding that a court may take judicial notice of
public records if the facts noticed are not subject to
reasonable dispute); Intri-Plex Tech., Inv. v. Crest
Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).
Nevada law, “[a]n action may be brought by any person
against another who claims an estate or interest in real
property, adverse to the person bringing the action for the
purpose of determining such adverse claim.” Nev. Rev.
Stat. § 40.010. “A plea to quiet title does not
require any particular elements, but each party must plead
and prove his or her own claim to the property in question
and a plaintiff's right to relief therefore depends on
superiority of title.” Chapman v. Deutsche Bank
Nat'l Trust Co., 302 P.3d 1103, 1106 (Nev. 2013)
(internal quotation marks and citations omitted). Therefore,
for plaintiff to succeed on its quiet title action, it needs
to show that its claim to the property is superior to all