United States District Court, D. Nevada
before the court is defendant/counter-claimant Saticoy Bay
LLC Series 8920 El Diablo's (“Saticoy”)
motion for summary judgment. (ECF No. 35).
Plaintiff/counter-defendant Elizon Master Participation Trust
1, U.S. Bank Trust National Association, as Owner Trustee
(“Elizon”) filed a response (ECF No. 40), and
Saticoy filed a reply (ECF No. 41).
before the court is Elizon's motion for summary
judgment. (ECF No. 36). Saticoy filed a response
(ECF No. 39), and Elizon filed a reply (ECF No. 42).
present case involves a dispute over real property located at
8920 El Diablo Street, Las Vegas, Nevada 89131 (the
January 13, 2012, Ralph and Rebecca Lake (the
“Borrowers”) obtained a loan in the amount of
$149, 121 from Bank of America, N.A. (“BOA”) and
purchased the property. (ECF No. 3). The deed of trust listed
Recon Trust Company, N.A. as the Trustee and Mortgage
Electronic Registration System, Inc. (“MERS”) as
the beneficiary. Id.
31, 2012, an assignment of the deed of trust was recorded,
whereby MERS assigned the deed of trust to BOA. Id.
January 30, 2013, Hampton & Hampton Collections, LLC
(“the HOA trustee”) recorded a notice of default
and election to sell property, on behalf of Silverstone Ranch
Community Association (“the HOA”). Id.
March 12, 2013, BOA, through counsel, requested a
superpriority lien payoff demand and an account ledger from
the HOA trustee. Id. The HOA trustee sent BOA a
ledger stating an amount due of $2, 354.50. Id. The
ledger did not specify the amount of the superpriority
portion. Id. Because the ledger did not provide the
superpriority portion, BOA, through its counsel, estimated
nine months of HOA assessments at $509.85 and tendered as
much to the HOA. Id. On May 3, 2013, the HOA trustee
accepted BOA's payment. Id.
19, 2013, a second assignment of the deed of trust was
recorded in which BOA conveyed the property to Nationstar
Mortgage LLC. Id.
September 9, 2013, the HOA trustee, on behalf of the HOA,
recorded a second notice of default and election to sell
property. Id. On June 16, 2014, the HOA trustee, on
behalf of the HOA, recorded a notice of trustee's sale
against the property, stating that the total amount due on
the lien was $3, 338.10. Id.
30, 2014, Saticoy purchased the property at the
homeowner's association lien foreclosure sale for $34,
September 3, 2014, a third assignment of the deed of trust
was recorded in which Nationstar conveyed the deed of trust
to the secretary of Housing and Urban Development.
Id. That same day the secretary conveyed the
property to Elizon Master Participation Trust I via a fourth
assignment of the deed of trust. Id. Then, again on
September 3, 2014, Elizon Master Participation Trust I
conveyed the property to Elizon via a fifth assignment of the
deed of trust.
January 15, 2015, Saticoy recorded its interest in the
property acquired at the HOA foreclosure sale. Id.
April 5, 2016, Elizon filed a complaint against Saticoy, the
HOA, and the HOA trustee. (ECF No. 1). On April 7, 2016,
Elizon filed its amended complaint. (ECF No. 3). The amended
complaint asserts six causes of action: (1) quiet
title/declaratory relief against Saticoy and the HOA; (2)
preliminary injunction versus Saticoy; (3) unjust enrichment
as to all defendants; (4) wrongful foreclosure against the
HOA and the HOA trustee (5) negligence against the same; and
(6) negligence per se against the same.
turn, Saticoy asserted counterclaims against Elizon for
declaratory relief and to quiet title. (ECF No. 12). Both
parties now move for summary judgment on their respective
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 versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
initial matter, claim (2) of Elizon's complaint will be
dismissed, as this court follows the well-settled rule that a
claim for “injunctive relief” is not a cause of
action. See, e.g., In re Wal-Mart Wage &
Hour Emp't Practices Litig., 490 F.Supp.2d 1091,
1130 (D. Nev. 2007); Tillman v. Quality Loan Serv.
Corp., No. 2:12-CV-346 JCM RJJ, 2012 WL 1279939, at *3
(D. Nev. Apr. 13, 2012) (finding that “injunctive
relief is a remedy, not an independent cause of
action”); Jensen v. Quality Loan Serv. Corp.,
702 F.Supp.2d 1183, 1201 (E.D. Cal. 2010) (“A request
for injunctive relief by itself does not state a cause of
court takes judicial notice of the following recorded
documents: the first deed of trust (ECF No. 37-2); the
assignments of deed of trust (ECF Nos. 37-3 through 37-7);
the first notice of default and election to sell (ECF No.
37-8); the second notice of default and election to sell (ECF
No. 37-12); the notice of trustee's sale (ECF No. 37-13);
and the trustee's deed upon sale (ECF No. 37-14).
See, e.g., United States v. Corinthian Colls., 655
F.3d 984, 998-99 (9th Cir. 2011) (holding that a court may
take judicial notice of public records if the facts noticed
are not subject to reasonable dispute); Intri-Plex Tech
v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir.
2007). The court also takes judicial notice of the notice of
delinquent assessment lien. (ECF No. 35-3).
Saticoy's motion, it contends that summary judgment in
its favor is proper because, inter alia, the
foreclosure sale extinguished Elizon's deed of trust
pursuant to NRS 116.3116 and SFR Investments. (ECF
No. 37). Saticoy further contends that the foreclosure sale
should not be set aside because Elizon has not shown fraud,
unfairness, or oppression as outlined in Shadow Wood
Homeowners Assoc. v. N.Y. Cmty. Bancorp., Inc., 366 P.3d
1105 (Nev. 2016) (“Shadow Wood”). (ECF
Elizon's motion for summary judgment and in its response
to Saticoy's motion for summary judgment, Elizon sets
forth the following relevant arguments: (1) the foreclosure
sale is invalid because NRS Chapter 116 is facially
unconstitutional pursuant to Bourne Valley Court Trust v.
Wells Fargo Bank, N.A., 832 F.3d 1154 (9th Cir. 2016),
cert. denied, No. 16-1208, 2017 WL 1300223 (U.S.
June 26, 2017) (“Bourne Valley”); (2)
its predecessor-in-interest offered to pay, and the HOA
accepted, an amount equal to nine months of homeowner's
association assessments, thus adequately preserving the first
deed of trust; (3)) the trustee's sale failed to comply
with NRS 116.3116 as the foreclosure notices includes
additional costs and fees which are impermissible under the
statute and the sale crier's failure to indicate at the
foreclosure sale that there had been tender to extinguish the
superpriority portion of the HOA's constitutes grounds
for setting aside the sale; (4) the foreclosure sale was
commercially unreasonable and there was fraud, unfairness,
and oppression as the foreclosure sale failed to comply with
NRS 116.3116; (5) Saticoy is not a bona fide purchaser; and
(6) SFR Investments should not be applied
retroactively. (ECF Nos. 36, 40). The court begins with the
question of tender and analyzes the rest of Elizon's
claims in turn.