United States District Court, D. Nevada
before the court is plaintiff CitiMortgage, Inc.'s
(“CMI”) motion for summary judgment. (ECF No.
37). No responses were filed to this motion.
before the court is defendant SFR Investments Pool 1,
LLC's (“SFR”) motion to certify a question of
law. (ECF No. 50). CMI filed a response (ECF No. 55), and SFR
filed a reply (ECF No. 56).
before the court is defendant SFR's motion for partial
summary judgment. (ECF No. 58). No responses were filed to
case involves the HOA foreclosure sale of the real property
at 2305 W. Horizon Ridge Parkway #3311, Henderson, Nevada.
(ECF No. 1).
January 13, 2012, Mission Hills Homeowners Association (the
“HOA”) recorded a notice of delinquent assessment
(lien), indicating an outstanding liability of $4, 620.00.
(ECF No. 37-1).
April 4, 2012, the deed of trust on the property, produced in
relation to the original purchase loan, was assigned to
(Id.). Bank of America, N.A. as successor by merger
to BAC Home Loans Servicing, LP (“BANA”) acted as
servicer of the loan. (ECF No. 1).
8, 2012, the HOA recorded a notice of default and election to
sell, indicating an amount of $5, 770.00. (ECF No. 37-1).
Thereafter, on November 19, 2012, the HOA recorded a notice
of trustee's sale, asserting a sum due of $8, 002.55.
(Id.). Finally, the HOA's agent, Alessi &
Koenig, recorded a trustee's deed upon sale on February
26, 2013, that recognized SFR's purchase of the property.
February 24, 2016, CMI filed the underlying complaint in this
case, alleging: (1) quiet title and declaratory judgment
against all defendants; (2) breach of NRS 116.1113 against
the HOA and Alessi; (3) wrongful foreclosure against the
same; and (4) injunctive relief against SFR. (ECF No. 1).
25, 2016, SFR filed a counterclaim against CitiMortgage, Inc.
requesting declaratory and injunctive relief in connection
with a quiet title claim on the property (ECF No. 22).
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 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
non-moving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, the court applies a
burden-shifting analysis. “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.” C.A.R. Transp. Brokerage Co. v. Darden
Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000).
Moreover, “[i]n 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.”
contrast, when the non-moving 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 non-moving 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, 630 (9th Cir.
initial matter, a failure to respond to a motion for summary
judgment is not a sufficient condition for that motion's
success. See LR 7-2(d); see also Heinemann v.
Satterberg, 731 F.3d 914, 917-18 (9th Cir. 2013). A
district court may grant an unopposed motion for summary
judgment only if the movant's filings satisfy the summary
judgment standard. See White v. Aramark, No.
14-55405, 2016 WL 6583620, at *1 (9th Cir. Nov. 7, 2016)
(citing Henry v. Gill Indus., Inc., 983 F.2d 943,
950 (9th Cir. 1993)). The court proceeds accordingly.
Plaintiff's NRS 116.1113 and wrongful foreclosure
(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). 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 has been submitted to
mediation.” NRS 38.310. Specifically, NRS 38.330(1)
offers in relevant part:
If the parties participate in mediation and an agreement is
not obtained, any party may commence a civil action in the
proper court concerning the claim that was submitted to
mediation. Any complaint filed in such an action must contain
a sworn statement indicating that the issues addressed in the
complaint have been mediated pursuant to the ...