United States District Court, D. Nevada
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.
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.).
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.).
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. (Id.). Saticoy purchased
the property at that sale. (Id.); see also
(ECF No. 50-8).
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).
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 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 ...