United States District Court, D. Nevada
DEBRA E. BLOOMFIELD, an individual; and KIRMAN COURT APARTMENTS, LLC, a Nevada Limited Liability Company, Plaintiffs,
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.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
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),  the Motion is granted, and the TRO Motion
is denied as moot.
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.
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 (“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.)
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.)
MOTION FOR SUMMARY JUDGMENT (ECF No.
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.
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).
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.
First Claim: Non-Compliance with NRS Chapter 107
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 ...