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Bloomfield v. Sables, LLC

United States District Court, D. Nevada

October 5, 2017

DEBRA E. BLOOMFIELD, an individual; and KIRMAN COURT APARTMENTS, LLC, a Nevada Limited Liability Company, Plaintiffs,
v.
SABLES, LLC, a Limited Liability Company; U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR LEHMAN BROTHERS SMALL BALANCE COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-3, a national association; and DOES 1 through 10, Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Pending before the Court is Defendants' Motion for Summary Judgment (“Motion”) (ECF No. 20) and Plaintiffs' Motion for Temporary Restraining Order (“TRO Motion”) (ECF No. 24). After review of Plaintiffs' response to Defendants' Motion (ECF No. 22), [1] the Motion is granted, and the TRO Motion is denied as moot.

         II. BACKGROUND

         Plaintiffs Debra E. Bloomfield and Kirman Court Apartments, LLC, initiated this action on August 26, 2016, in the Second Judicial District Court for Clark County, Nevada. (ECF No. 1 at 1, 7.) Defendants Sables, LLC (“Sables”), and U.S. Bank National Association, as Trustee for Lehman Brothers Small Balance Commercial Mortgage Pass- Through Certificates, Series 2003-3 (“U.S. Bank”) removed the case on August 31, 2016, on the basis of diversity jurisdiction. (ECF No. 1 at 1-4.) The following facts are taken from the complaint except as noted.

         Plaintiffs are owners of real property located at 1830 Kirman Avenue in Reno, Nevada (“the Property”). (ECF No. 1 ¶ 1.) On April 16, 2007, Bloomfield obtained a $1, 450, 000 commercial loan (“Loan”) from Greenpoint Mortgage Funding Corporation (“Greenpoint”). (ECF No. 1 at ¶ 5; ECF No. 20 at 2.) The Loan is secured by a Deed of Trust (“DOT”) encumbering the Property. (ECF No. 20 at 2.) In February 2012, Bloomfield entered into a loan modification agreement[2] (“the Agreement”) with Aurora Bank (“Aurora”). (ECF No. 1 at ¶ 7.) In June 2012, Aurora dissolved. (ECF No. 1 at ¶ 9.) In January 2013, Plaintiffs received correspondence from a company demanding payment for the Loan. (ECF No. 1 at ¶ 10.) On September 12, 2013, U.S. Bank filed a complaint seeking the state court to appoint a receiver, and on November 26, 2013, the state court denied U.S. Bank's petition for appointment of receiver. (ECF No. 1 at ¶¶ 13-14; ECF No. 1 at 26 (Exhibit 4).) A second petition for appointment of receiver was denied in June 2016. (ECF No. 1 at ¶ 18.) On August 1, 2016, Sables mailed a Notice of Trustee ‘s Sale to Plaintiffs, with the sale set for August 29, 2016. (ECF No. 1 at ¶ 19.) Prior to removal, the state court granted a motion for temporary restraining order preventing the trustee's sale of the Property. (ECF No. 1 at 51.)

         Plaintiffs assert four claims against Defendants: (1) failure to comply with NRS Chapter 107; (2) Plaintiffs' compliance with state court's orders; (3) Defendants' failure to demonstrate ownership of the promissory note (“the Note”) and DOT; and (4) Defendants' breach of the Agreement. (ECF No. 1 at 10-11.)

         III. MOTION FOR SUMMARY JUDGMENT[3] (ECF No. 20)

         Defendants contend that summary judgment should be granted in their favor because three of Plaintiffs' claims are not legally cognizable claims and because Plaintiffs cannot recover under their fourth claim given that they have failed to perform under the Agreement. (ECF No. 20 at 8-9.) The Court agrees and grants summary judgment in their favor.

         A. Legal Standard

         “The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (internal citation omitted). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits show “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at trial.'” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

         The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (internal citation omitted). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, ” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252.

         B. First Claim: Non-Compliance with NRS Chapter 107

         Plaintiffs' first claim states that “[i]n mailing a Notice of Trustee's Sale to Plaintiffs on August 1, 2016, Defendant's [sic] have not complied with the requirement of NRS Chapter 107” because they did not serve a required Affidavit ...


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