United States District Court, D. Nevada
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).
before the court is plaintiff Bank of New York Mellon's
(the “Bank”) motion for summary
judgment. (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
action involves the nonjudicial foreclosure sale of the real
property at 6525 Blooming Sun Court, Las Vegas, Nevada 89142
(the “property”). (ECF No. 1).
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).
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).
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
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).
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).
August 19, 2016, Ramirez filed an answer and crossclaim,
requesting that the court quiet title to the property in her
favor. (ECF No. 20).
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.
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 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 ...