United States District Court, D. Nevada
before the court is plaintiff Bank of America, N.A.'s
(“BANA”) motion for summary judgment. (ECF No.
43). Both defendant The Villas at Sky Vista Homeowners
Association (the “HOA”) and defendant Thunder
Properties, Inc. filed responses. (ECF Nos. 45, 46). BANA
replied to both responses. (ECF Nos. 53, 54).
litigation involves the nonjudicial HOA foreclosure sale of
the real property at 9298 Lone Wolf Circle, Reno, Nevada (the
“property”). (ECF No. 43).
2005, BANA provided a loan secured by a senior deed of trust
on the property. (Id.). On December 8, 2010, Hampton
& Hampton (“H&H) recorded a notice of
delinquent assessment lien on behalf of the HOA, listing a
sum due of $893.00. (ECF No. 43-2).
January 19, 2011, H&H recorded a notice of default and
election to sell on the property, which indicated an amount
due of $1, 788.00. (ECF No. 43-3).
March 22, 2011, and March 25, 2011, Miles, Bauer, Bergstrom
& Winters, LLP sent letters to H&H that culminated in
an $720.00 tender offer. (ECF No. 43-6). That payment was
accepted by H&H. (Id.).
September 19, 2013, H&H recorded a second notice of
default and election to sell, which identified an amount due
of $4, 426.00. (ECF No. 43-4).
2, 2014, H&H recorded a notice of trustee's sale,
which identified an amount due of $6, 464.00. (ECF No. 43-5).
Finally, on July 30, 2014, H&H recorded a trustee's
deed upon sale recognizing Thunder Properties, Inc.'s
interest in the real estate. (ECF No. 43-7).
court's March 9, 2017, order dismissed BANA's Nevada
Revised Statute (“NRS”) § 116.1113 and
wrongful foreclosure claims as unexhausted. (ECF No. 57).
Thus, plaintiff's claims as to injunctive relief and
quiet title remain unadjudicated. See (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 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.
Ninth Circuit has held that information contained in an
inadmissible form may still be considered for summary
judgment if the information itself would be admissible at
trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003) (citing Block v. City of Los Angeles, 253
F.3d 410, 418-19 (9th Cir. 2001) (“To survive summary
judgment, a party does not necessarily have to produce
evidence in a form that would be ...