United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT JUDGE
before the Court is the Motion for Summary Judgment, (ECF No.
48), filed by Defendant Green Tree Servicing, LLC
(“Green Tree”). Plaintiff Lan Fang Cui
(“Plaintiff”) filed a Response, (ECF No. 55), and
Green Tree filed a Reply, (ECF No. 56). For the reasons
discussed below, Green Tree's Motion for Summary Judgment
present action arises from the attempted foreclosure sale of
real property located at 3534 White Mountain St., Las Vegas,
NV 89147 (the “Property”). (See Compl.,
ECF No. 1-2). On October 21, 2005, Juan Rodriquez
(“Rodrgiuez”) and Catalina Gonzalez
(“Gonzalez”) purchased the Property. (Grant,
Bargain, Sale Deed, ECF No. 8-1). A Deed of Trust was recorded
on February 27, 2007, wherein Rodriquez and Gonzalez were
stated as the borrowers, Countrywide Home Loans, Inc.
(“Countrywide”) was stated as the lender,
Fidelity National Title Insurance was stated as the trustee,
and Mortgage Electronic Registration Systems, Inc.
(“MERS”) was stated as the nominee for the
beneficiary. (2007 Deed of Trust, ECF No. 8-2). On March 5,
2010, BAC Home Loans Servicing, LP f/k/a Countrywide
(“BAC”) was assigned all beneficial interest in
the 2007 Deed of Trust. (Corp. Assignment of Deed of Trust,
ECF No. 8-3). Then, on May 11, 2011, MERS transferred any and
all beneficial interest in the Property to BAC. (2011
Assignment of Deed of Trust, ECF No. 8-4).
Tree obtained BAC's interest in the Property on May 17,
2013. (2013 Assignment of Deed of Trust, ECF No. 8-5). On
December 18, 2013, the bankruptcy trustee for the estate of
Rodriguez and Gonzalez executed a Bankruptcy Trustee's
Quitclaim Deed, whereby title to the Property was transferred
to Argo NV, LLC. (Bankruptcy Trustee's Quitclaim Deed,
ECF No. 8-6). Plaintiff obtained title to the Property
pursuant to a Quitclaim Deed on March 4, 2014. (Quitclaim
Deed, ECF No. 8-7).
12, 2014, Defendant National Default Servicing Corporation
(“NDSC”) was substituted as trustee under the
2007 Deed of Trust. (Substitution of Trustee, ECF No. 8-8).
Subsequently, on October 15, 2014, a Notice of Default and
Election to Sell was recorded against the Property. (Notice
of Default and Election to Sell, ECF No. 8-9). Furthermore,
on January 15, 2015, a Certificate from the Nevada
Foreclosure Mediation Program was recorded. (Mediation
Certificate, ECF No, 8-10). Finally, on February 10, 2015, a
Notice of Trustee's Sale was recorded, which set a sale
date of the Property on March 3, 2015. (Notice of
Trustee's Sale, ECF No. 8-11).
February 12, 2015, Plaintiff filed the Complaint in state
court, alleging that Defendants NDSC and Green Tree violated
NRS 107.080 by failing to provide Plaintiff notice of
the Notice of Default and Election to Sell and the Notice of
Trustee's Sale. (Compl. ¶¶ 7-11, Ex. 2 to Pet.
for Removal, ECF No. 1-2). Specifically, Plaintiff's
Complaint asserts the following causes of action: (1)
Declaratory Relief; (2) Unjust Enrichment; and (3) Violations
of NRS 107.080(3) and (4)(a). (Id. ¶¶
12-26). On February 23, 2015, the state court granted
Plaintiff's Ex Parte Application for Temporary
Restraining Order, which prevented the Trustee's Sale
scheduled for March 3, 2015 from taking place. (TRO, ECF No.
1-6). On March 4, 2015, Green Tree removed the case to this
Court. (See Pet. for Removal, ECF No. 1).
October 21, 2015, the Court granted in part and denied in
part Green Tree's Motion to Dismiss, (ECF No. 7).
(See Order, ECF No. 23). Specifically, the Court
dismissed Plaintiff's claim of unjust enrichment without
prejudice and denied Green Tree's Motion as to
Plaintiff's remaining claims. (Id. 9:4-7).
Plaintiff's first cause of action for declaratory relief
and third cause of action for a violation of NRS 107.080
survived. (See Compl. ¶¶ 12-26).
2, 2016, the Court denied Green Tree's first Motion for
Summary Judgment because the evidence Green Tree provided was
insufficient to establish that no genuine issue of material
fact existed as to whether the Notice of Default and Election
to Sell were mailed with return receipt requested. (Order
7:7-9, ECF No. 36). In the instant Motion, Green Tree
purports to have rectified the issue by providing such
evidence. (Mot. for Summ. J. (“MSJ”) 6:20-13:15,
ECF No. 48).
Federal Rules of Civil Procedure provide for summary
adjudication 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).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. See Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party's
favor.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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
determining summary judgment, a 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. 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). In 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 nonmoving 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. 1987). In 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 Corp., 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,
477 U.S. at 249. 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 ...