United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
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”).
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.
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). 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).
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).
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 merely colorable or is not
significantly probative, summary judgment may be granted.
See Id. at 249-50.
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.
Nevada Revised Statute § 116.3116 and 12 ...