United States District Court, D. Nevada
before this court is defendant/counter-claimant Daisy
Trust's motion for summary judgment. (ECF No. 32).
Plaintiff/counter-defendant Bank of America, N.A.
(“BANA”) filed a response (ECF No. 38), to which
Daisy Trust replied (ECF No. 44).
before this court is defendant Nevada Trails II Community
Association, Inc.'s (the “HOA”) motion to
dismiss or in the alternative motion for summary judgment.
(ECF No. 34). BANA filed a response (ECF No. 36), to which
the HOA replied (ECF No. 42).
before the court is BANA's motion for summary judgment.
(ECF No. 35). Daisy Trust filed a response (ECF No. 37), to
which BANA replied (ECF No. 43).
case involves a dispute over real property located at 7623
Cascade Ridge Court, Las Vegas, Nevada 89113 (the
“property”). (ECF No. 1 at 2). On July 29, 2008,
Sung Chang obtained a loan in the amount of $267, 600.00 from
BANA to purchase the property, which was secured by a deed of
trust recorded on July 30, 2008. (ECF No. 1 at 3-4).
September 1, 2009, defendant Alessi & Koenig, LLC
(“A&K”), acting on behalf of the HOA,
recorded a notice of delinquent assessment lien, stating an
amount due of $632.00. (ECF No.1 at 4). On December
7, 2009, A&K recorded a notice of default and election to
sell to satisfy the delinquent assessment lien, stating an
amount due of $1, 630.00. (ECF No. 1 at 4).
January 15, 2010, BANA requested a ledger from A&K to
identify the superpriority amount allegedly owed to the HOA.
(ECF No. 35-4 at 6-7). A&K did not identify the
super-priority portion of the lien but reasserted a total
amount due of $2, 624.00. (ECF No. 35-4 at 11- 14). BANA
calculated the superpriority amount to be $387.00 and
tendered that amount to A&K on April 30, 2010, which
A&K allegedly refused. (ECF No. 35-4. at 16-18).
August 9, 2010, A&K recorded a notice of trustee's
sale, stating an amount due of $2, 763.00. (ECF No. 1 at 4).
On November 18, 2011, A&K recorded a second notice of
trustee's sale, stating an amount due of $4, 173.00. (ECF
No. 1 at 4). On August 2, 2012, A&K recorded a third
notice of trustee's sale, stating an amount due of $4,
398.00. (ECF No. 1 at 5).
September 5, 2012, Daisy Trust purchased the property at the
foreclosure sale for $6, 300.00. (ECF No. 1 at 6). A
foreclosure deed in favor of Daisy Trust was recorded on
September 11, 2012. (ECF No. 1 at 6).
April 18, 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 A&K; (3) wrongful foreclosure against the HOA
and A&K; and (4) injunctive relief against Daisy Trust.
(ECF No. 1).
10, 2016, Daisy Trust filed a counterclaim against BANA
seeking quiet title and declaratory relief. (ECF No. 11)
5, 2017, Daisy Trust filed a motion for summary judgment
regarding the two claims in its counterclaim. (ECF No. 32).
on May 5, 2017, the HOA filed a motion to dismiss or in the
alternative motion for summary judgment regarding all claims
filed against it and argues that BANA failed to bring its
claims within the “applicable three year statute of
limitations.” (ECF No. 34 at 2).
on May 5, 2017, BANA filed a motion for summary judgment
regarding the four causes of action in its complaint. (ECF
court will address each as it sees fit.
Motion to Dismiss
court may dismiss a plaintiff's complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A properly pled
complaint must provide “[a] short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Although Rule 8 does not
require detailed factual allegations, it does require more
than labels and conclusions. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Furthermore, a
formulaic recitation of the elements of a cause of action
will not suffice. Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009) (citation omitted). Rule 8 does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions. Id. at 678-79.
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Id. A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. When a complaint pleads facts that are
merely consistent with a defendant's liability, and shows
only a mere possibility of entitlement, the complaint does
not meet the requirements to show plausibility of entitlement
to relief. Id.
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering a
motion to dismiss. Id. First, the court must accept
as true all of the allegations contained in a complaint.
Id. However, this requirement is inapplicable to
legal conclusions. Id. Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Id. at 678. Where the complaint does not
permit the court to infer more than the mere possibility of
misconduct, the complaint has “alleged - but not shown
- that the pleader is entitled to relief.” Id.
at 679. When the allegations in a complaint have not crossed
the line from conceivable to plausible, plaintiff's claim
must be dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court held:
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
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.
initial matter, BANA's claim for injunctive relief
against Daisy Trust, claim (4), is dismissed without
prejudice because the court follows the well-settled rule
that a claim for “injunctive relief” standing
alone is not a cause of action. See, e.g., In re
Wal-Mart Wage & Hour Emp't Practices Litig., 490
F.Supp.2d 1091, 1130 (D. Nev. 2007); Tillman v. Quality
Loan Serv.Corp., No. 2:12-cv-346-JCM-RJJ, 2012 WL
1279939, at *3 (D. Nev. Apr. 13, 2012) (finding that
“injunctive relief is a remedy, not an independent
cause of action”); Jensen v. Quality Loan Serv.
Corp., 702 F.Supp.2d 1183, 1201 (E.D. Cal. 2010)
(“A request for injunctive relief by itself does not
state a cause of action.”).