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Bank of America, N.A. v. Tapestry At Town Center Homeowners Association

United States District Court, D. Nevada

July 6, 2017

BANK OF AMERICA, N.A., Plaintiffs,
v.
TAPESTRY AT TOWN CENTER HOMEOWNERS ASSOCIATION, et al., Defendants.

          ORDER

         Presently before the court is plaintiff Bank of America, N.A.'s (“BANA”) motion for summary judgment against all claims as to all defendants. (ECF No. 50). Defendant Saticoy May LLC Series 9157 Desirable (“Saticoy”) filed a response (ECF No. 55), and plaintiff filed a reply (ECF No. 56).[1]

         I. Introduction

         At issue is the real property at 9157 Desireable Court, Las Vegas, NV (the “property”). (ECF No. 50). BANA received a senior deed of trust on an FHA-insured loan; that transfer was recorded on March 20, 2012. (Id.).

         Tapestry at Town Center Homeowners Association (the “HOA”) “recorded a notice of delinquent assessment lien against the property on June 1, 2012, ” indicating a sum owed of $1, 006.07. (Id. at 3). On November 4, 2013, Terra West Collections Group (“AMS”) recorded a notice of default and election to sell based upon a $3, 208.35 liability in favor of the HOA. (Id.).

         Despite BANA's correspondence to AMS and attempt to satisfy the debt, the HOA recorded a notice of foreclosure sale on May 14, 2014. (Id.). Ultimately, the HOA foreclosed on the property on June 18, 2014.[2] (Id.). Saticoy purchased the property at that sale. (Id.); see also (ECF No. 50-8).

         Plaintiff's complaint alleges the following claims against the corresponding parties: (1) quiet title/declaratory judgment against all defendants; (2) breach of Nevada Revised Statute (“NRS”) § 116.1113 against the HOA and AMS; (3) wrongful foreclosure against the same; and (4) injunctive relief against Saticoy. (ECF No. 1).

         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 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 ...

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