United States District Court, D. Nevada
before the court is plaintiff/counter-defendant Bank of
America, N.A.'s (“BANA”) motion for summary
judgment. (ECF No. 41). SFR Investments Pool 1, LLC
(“SFR”) responded (ECF No. 86), to which BANA
replied (ECF No. 89).
before this court is SFR's motion for summary judgment
(ECF No. 79), joined by Desert Pine Villa Homeowners
Association (the “HOA”) (ECF No. 80). BANA
responded (ECF No. 85), to which SFR replied (ECF No. 90).
before this court is SFR's motion for partial summary
judgment regarding a pure issue of law. (ECF No. 69). BANA
responded (ECF No. 71), to which SFR replied (ECF No. 74).
before this court is SFR's motion to certify a question
of law to the Nevada Supreme Court. (ECF No. 62). BANA filed
a response (ECF No. 65), to which SFR replied (ECF No. 67).
case involves a dispute over real property located at 3928
Lazy Pine Street, #103, Las Vegas, Nevada 89108 (the
“property”). (ECF No. 41 at 3). On January 10,
2005, Janet Robitaille obtained a loan in the amount of $170,
895.00 to purchase the property, which was secured by a deed
of trust recorded on January 28, 2005. (Id.).
deed of trust was “assigned to [BANA] via an assignment
of deed of trust recorded on October 7, 2011.”
September 16, 2011, defendant Alessi & Koenig, LLC
(“Alessi”), acting on behalf of the HOA, recorded
a notice of delinquent assessment lien, stating an amount due
of $1, 776.00. (Id.). On March 16, 2012, Alessi
recorded a notice of default and election to sell to satisfy
the delinquent assessment lien, stating an amount due of $3,
April 11, 2012, BANA requested a ledger from Alessi to
identify the superpriority amount allegedly owed to the HOA.
(ECF No. 41-7 at 6-7). Alessi did not identify the
super-priority portion of the lien but reasserted the total
amount due, $4, 760.00. (Id. at 9-11). BANA
calculated the superpriority amount to be $1, 512.00 and
tendered that amount to Alessi on May 3, 2012, which Alessi
refused. (Id. at 14-16).
November 5, 2012, Alessi recorded a notice of trustee's
sale, stating an amount due of $5, 888.00. (ECF No. 41 at 3).
On December 5, 2012, SFR purchased the property at the
foreclosure sale for $7, 557. (Id. at 4). A
foreclosure deed in favor of SFR was recorded on December 10,
April 1, 2016, BANA filed the underlying complaint, alleging
four causes of action: (1) quiet title/declaratory judgment
against all defendants; (2) breach of NRS 116.1113 against
the HOA and Alessi; (3) wrongful foreclosure against the HOA
and Alessi; and (4) injunctive relief against SFR. (ECF No.
instant motions, BANA moves for summary judgment inter
alia regarding quiet title and argues: (1) its tender
was sufficient and should not have been rejected; (2) the HOA
lien statute is facially unconstitutional, and “any
factual issue[s] concerning actual notice [are]
irrelevant”; (3) the Supremacy Clause bars the
foreclosure sale; (4) the SFR Investments decision
should not be applied retroactively; (5) the foreclosure sale
was commercially unreasonable; and (6) SFR was not a bona
fide purchaser for value. (ECF Nos. 41 at 11, 85).
SFR moves for summary judgment regarding quiet title and
argues the court should sever the relevant subsection of NRS
chapter 116 (ECF Nos. 79 and 90), for partial summary
judgment regarding a pure issue of law; that the court apply
the “return doctrine” to NRS 116.31163,
116.311635, and 116.31168 (ECF No. 69); and to certify a
question of law to the Nevada Supreme Court (ECF No. 62).
Certify question of law to the Nevada Supreme Court
Nevada Rules of Appellate Procedure provide that the Supreme
Court of Nevada has the power to answer “questions of
[state] law . . . which may be determinative of the cause
then pending in the certifying court and as to which it
appears to the certifying court there is no controlling
precedent in the decisions of the Supreme Court of
[Nevada].” Nev. R. App. P. 5(a).
Nevada Supreme Court “may answer questions of law
certified  by a federal court when (1) [the] answers to the
certified questions may be determinative of part of the
federal case, (2) there is no clearly controlling Nevada
precedent, and (3) the answers to the certified questions
will help settle important questions of law. See,
e.g., Hartford Fire Ins. Co. v. Tr. of Const.
Indus., 208 P.3d 884, 888 (Nev. 2009).
the question does not impact the merits of a claim pending
before the certifying court, the question should not be
certified to the Supreme Court. See Nev. R. App. P.
5(a) (requiring that certified question be
“determinative”); see also Volvo Cars of N.
Am., Inc. v. Ricci, 137 P.3d 1161, 1164 (Nev. 2006)
(declining to answer certified questions where “answers
to the questions posed  would not ‘be
determinative' of any part of the case”).
“The certification procedure is reserved for state law
questions that present significant issues, including those
with important public policy ramifications, and that have not
yet been resolved by the state courts.” Kremen v.
Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003).
courts have discretion to certify questions of state law.
Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).
“Resort to certification is not mandatory where state
law is unclear on a particular issue.” Carolina
Cas. Ins. Co. v. McGhan, 572 F.Supp.2d 1222, 1225 (D.
Nev. 2008) (citing Lehman Bros., 416 U.S. at
390-91). Generally, “[w]hen a decision turns on
applicable state law and the state's highest court has
not adjudicated the issue, a federal court must make a
reasonable determination of the result the highest state
court would reach if it were deciding the case.”
Aetna Cas. & Sur. Co. v. Sheft, 989 F.2d 1105,
1108 (9th Cir. 1993).
a federal court may decline to certify a question where
controlling precedent is available for guidance. Slayman
v. FedEx Ground Package Sys., Inc., 765 F.3d 1033, 1041
(9th Cir. 2014); see also Kehoe v. Aurora Loan Servs.,
LLC, No. 3:10-cv-256-RCJ-RAM; 2010 WL 4286331, at *11
(D. Nev. Oct. 20, 2010) (declining to certify question to
Nevada Supreme Court where statutory language was
sufficiently clear for the court to apply).
a party must show “particularly compelling
reasons” for certification when that party first
requests it after losing on an issue. Complaint of
McLinn, 744 F.2d 677, 681 (9th Cir. 1984)
(“Ordinarily such a movant should not be allowed a
second chance at victory when, as here, the district court
employed a reasonable interpretation of state law.”).
Motion for Summary Judgment
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 nonmoving 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).
The evidence of the nonmovant 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.
Certify a question of law to the Nevada Supreme
requests that the court certify the following question to the
Nevada Supreme Court: “Whether NRS §
116.31168(1)'s incorporation of NRS § 107.090
requires homeowners' associations to provide notices of
default to banks even when a bank does not request
notice?” (ECF No. 62 at 2).
court declines to certify this question as controlling
precedent is available for guidance. The Ninth Circuit, in
Bourne Valley Court Trust v. Wells Fargo Bank, N.A.,
832 F.3d 1154 (9th Cir. 2016)-which SFR cites to in its
motion-explicitly answered SFR's exact question in the