United States District Court, D. Nevada
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.” (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).
case involves the HOA foreclosure sale of the real property
at 913 High Mountain Street, Henderson, Nevada (the
“property”). (ECF Nos. 1, 30).
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.
“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).
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).
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).
August 22, 2011, NAS recorded a notice of foreclosure sale
for the property, which indicated an outstanding liability of
$3, 481.46. (ECF No. 30-7). NAS did not accept that
offered payment. (ECF No. 30).
a foreclosure deed was recorded by NAS in favor of Premier on
March 11, 2013. (ECF No. 30-10).
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).
March 11, 2016, Premier and LYI filed an answer and
counterclaim against BANA, alleging claims of quiet title and
declaratory relief. (ECF No. 13).
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 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).
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).
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.
Plaintiff's NRS 116.1113 and wrongful foreclosure
(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 ...