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Cohen v. Bank of America, N.A.

United States District Court, D. Nevada

September 21, 2017

LES COHEN, Plaintiff,
BANK OF AMERICA, N.A., et al., Defendants.


          Gloria M. Navarro, Chief Judge United States District Court

         Pending before the Court is the Motion for Summary Judgment, (ECF No. 61), filed by Intervenor/Counter-Plaintiff Federal National Mortgage Association (“Fannie Mae”) and Intervenor/Counter-Plaintiff Federal Housing Finance Agency (“FHFA”). Also before the Court is the Motion for Summary Judgment, (ECF No. 68), filed by Defendant/Counter-Plaintiff Bank of America, N.A. (“BANA”). Lastly before the Court is the Motion for Summary Judgment, (ECF No. 69), filed by Plaintiff/Counter-Defendant Les Cohen (“Cohen”).

         The above motions have been fully briefed and are ripe for review. For the reasons set forth herein, Fannie Mae, FHFA, and BANA's motions are GRANTED, and Cohen's motion is DENIED.

         I. BACKGROUND

         The present action arises from the non-judicial foreclosure of the real property located at 10245 South Maryland Parkway #210, Las Vegas, NV 89123 (“the Property”). On May 20, 2005, Fresia Agudelo obtained a loan in the amount of $168, 000 from Custom House Loans, Inc. (“Custom House”) that was secured by a Deed of Trust on the Property. (Deed of Trust, Ex. A to MSJ, ECF No. 61-1).[1] Fannie Mae purchased the loan on or about June 1, 2005, and has owned it ever since. (See Curcio Decl., Ex. B to Intervenor MSJ ¶¶ 5, 8-9, ECF No. 61-2). On June 29, 2012, Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Custom House and Custom House's successors and assigns, assigned the Deed of Trust to BANA, which was then recorded on July 11, 2012. (Ex. C to Intervenor MSJ, ECF No. 61-3). On November 10, 2008, Nevada Association Services (“NAS”), acting on behalf of Mission Pointe Condominiums (“HOA”), recorded a Notice of Delinquent Assessment Lien against the Property. (Ex. H to MSJ, ECF No. 61-8). On June 20, 2014, the HOA sold the property to DML Investment Group (“DML”) for $19, 300. (Ex. J to Intervenor MSJ, ECF No. 61-10). At the time of the sale, BANA was acting as the servicer of the loan for Fannie Mae. (See Curcio Decl., Ex. B to Intervenor MSJ ¶¶ 8-10). On July 18, 2014, Plaintiff purchased the Property from DML by way of Quit Claim Deed. (Ex. K to Intervenor MSJ, ECF No. 61-11).

         In the Complaint, Plaintiff asserts the following causes of action: (1) quiet title with a requested remedy of declaratory relief; (2) injunctive relief; and (3) slander to title. (Compl. Ex. A to Pet. of Removal, ECF No. 1).


         The 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 (1986).

         In 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).

         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 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.

         At 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 merely colorable or is not significantly probative, summary judgment may be granted. See Id. at 249-50.


         The instant Motions implicate two overarching legal questions to be addressed by the Court: (1) the interplay between Nevada Revised Statute § 116.3116 and 12 U.S.C. § 4617; and (2) the impact of the Ninth Circuit's ruling in Bourne Valley Court Trust v. Wells Fargo Bank, NA, 832 F.3d 1154 (9th Cir. 2016), cert. denied, No. 16-1208, 2017 WL 1300223 (U.S. June 26, 2017). In Bourne Valley, the Ninth Circuit found the notice scheme in NRS § 116.3116 to be facially unconstitutional. This ruling alone is sufficient to address the dispositive issues in this case. Nonetheless, in the interest of clarity, the Court addresses both questions separately.

         1) Nevada Revised Statute ยง 116.3116 and 12 ...

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