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Bank of New York Mellon v. Sahara Sunrise Homeowners Association

United States District Court, D. Nevada

July 20, 2017



         Presently before the court is Absolute Collection Services, LLC's (“ACS”) motion to dismiss Luz Stella Ramirez-Salgado's (“Ramirez”) counterclaim. (ECF No. 25). Ramirez filed a response (ECF No. 26), and ACS filed a reply (ECF No. 27).

         Also before the court is plaintiff Bank of New York Mellon's (the “Bank”) motion for summary judgment.[1] (ECF No. 28). Ramirez joined in this motion. (ECF No. 30). Defendant Sahara Sunrise Homeowners Association (the “HOA”) filed a limited response. (ECF No. 29). The HOA later filed a supplement without leave, and that supplement will be stricken. (ECF No. 31); see also LR 7-2(g). The Bank thereafter filed a reply. (ECF No. 32).

         I. Introduction

         This action involves the nonjudicial foreclosure sale of the real property at 6525 Blooming Sun Court, Las Vegas, Nevada 89142 (the “property”). (ECF No. 1).

         On August 10, 2011, ACS recorded a notice of delinquent assessment lien on the property on behalf of the HOA, listing a sum due of $895.18. (ECF No. 28-3).

         On June 27, 2012, ACS recorded a notice of default and election to sell under the HOA lien, listing a sum due of $1, 959.60. (ECF No. 28-5).

         On July 6, 2012, ACS recorded another notice of default and election to sell, which identified an amount due of $2, 051.63. (ECF No. 28-6). On October 15, 2012, ACS recorded a notice of trustee's sale, showing an amount due of $3, 876.13. (ECF No. 28-7).

         Finally, on March 19, 2013, ACS recorded a trustee's deed upon sale regarding the underlying property, identifying Auction Real Estate Services, LLC as the purchaser. (ECF No. 28-9).

         The Bank asserts the following claims: (1) declaratory judgment for quiet title against all defendants; (2) breach of Nevada Revised Statutes (“NRS”) § 116.1113 against the HOA and ACS; (3) wrongful foreclosure against the same; (4) injunctive relief against Ramirez; and (5) deceptive trade practices against the HOA and ACS. (ECF No. 1).

         On August 19, 2016, Ramirez filed an answer and crossclaim, requesting that the court quiet title to the property in her favor. (ECF No. 20).

         II. Legal Standard

         a. Motion to dismiss

         The 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.

         To 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.

         In 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. 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.

         The 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 litigation.


         b. Motion for summary judgment

         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 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 non-moving party must “set forth specific facts showing that there is a genuine issue for trial.” Id.

         In 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.” Id.

         By 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).

         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 ...

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