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Bank of America, N.A. v. Valley View Meadows Homeowners Association, Inc.

United States District Court, D. Nevada

July 5, 2017

BANK OF AMERICA, N.A., Plaintiff(s),


         Presently before the court is plaintiff Bank of America N.A.'s (“BANA”) motion for summary judgment as to “all claims in its complaint and on Premier One Holdings, Inc. and Lin & Yeh, Inc.'s counterclaims.”[1] (ECF No. 30 at 2). Defendants Premier One Holdings, Inc. (“Premier”) and Lin & Yeh, Inc. (“LYI”) filed a response (ECF No. 31), and Valley View Meadows Homeowners Association (the “HOA”) joined that submission (ECF No. 32). BANA filed a reply. (ECF No. 34).

         I. Introduction

         The case involves the HOA foreclosure sale of the real property at 913 High Mountain Street, Henderson, Nevada (the “property”). (ECF Nos. 1, 30).

         On September 14, 2010, BAC Home Loans Servicing, LP (“BAC”) acquired the deed of trust created in connection with a purchase loan for the property. (ECF Nos. 30, 30-3).

         The HOA “recorded a notice of delinquent assessment lien in January 2010, ” stating that a sum of $736.34 was owed to the HOA. (ECF No. 30 at 3).

         On March 30, 2010, the HOA's agent, Nevada Association Service, Inc. (“NAS”), recorded a notice of default and election to sell, indicating a liability of $1, 824.34. (ECF No. 30-6).

         On July 29, 2010, BAC's counsel wrote a letter to NAS, offering tender of $180.00 for what that letter acknowledged was then a purported $4, 673.02 sum due. (ECF No. 30-9). On July 1, 2011, BAC merged into BANA. (ECF No. 30-4).

         On August 22, 2011, NAS recorded a notice of foreclosure sale for the property, which indicated an outstanding liability of $3, 481.46.[2] (ECF No. 30-7). NAS did not accept that offered payment. (ECF No. 30).

         Finally, a foreclosure deed was recorded by NAS in favor of Premier on March 11, 2013. (ECF No. 30-10).

         BANA alleges the following claims: (1) quiet title/declaratory judgment as to all defendants; (2) breach of Nevada Revised Statute (“NRS”) § 116.1113 against the HOA and NAS; (3) wrongful foreclosure against the same; and (4) injunctive relief against Premier. (ECF No. 1).

         On March 11, 2016, Premier and LYI filed an answer and counterclaim against BANA, alleging claims of quiet title and declaratory relief. (ECF No. 13).

         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 non-moving 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). Nonmovant's evidence 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

         a. Plaintiff's NRS 116.1113 and wrongful foreclosure claims

         Subsection (1) of NRS 38.330 provides 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). However, while NRS 38.330(1) explains the procedure for mediation, NRS 38.310 is clear that no civil action may be commenced “unless the action ...

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