United States District Court, D. Nevada
MARCIA M. BERGENFIELD, Plaintiff,
U.S. BANK NATIONAL ASSOCIATION et al., Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court are Plaintiff's Motion for Summary Judgment
(ECF No. 5), and Defendants' Motion for Summary Judgment
(ECF No. 16). For the reasons stated below, Plaintiff's
Motion for Summary Judgment is denied and Defendants'
Motion for Summary Judgment is granted.
seeks quiet title and declaratory relief that defendants may
not foreclose on her property because of the passing of the
applicable statute of limitations. The complaint was first
filed in state court on June 9, 2016, and removed on July 18,
2016. ECF No. 1. Prior to the filing of an answer, on July
19, 2016, Plaintiff Bergenfield filed a Motion for Summary
Judgment. ECF No. 5. The Motion argues only that under Nevada
law, a foreclosure is an action upon a contract, and
therefore the six-year contract statute of limitations bars
any action against Plaintiff's property. Defendants filed
an Answer on August 1, 2016. ECF No. 6. Defendants responded
to Plaintiff's Motion for Summary Judgment on August 12,
2016, and Plaintiff Replied on August 22, 2016. ECF Nos. 8,
11. A discovery order issued on August 22, 2016. ECF No. 12.
Discovery closed on January 30, 2017. Defendant Nationstar
Mortgage filed a Motion for Summary Judgment on February 3,
2017. ECF No. 16. The Motion argues that a longer ten-year
statute of limitations, for “expungement of
liens” applies to foreclosures, among other defenses.
Motion for Summary Judgment
judgment is appropriate 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); accord Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). When considering the propriety of summary
judgment, the court views all facts and draws all inferences
in the light most favorable to the nonmoving party.
Gonzalez v. City of Anaheim, 747 F.3d 789, 793
(9th Cir. 2014). If the movant has carried its
burden, the non-moving party “must do more than simply
show that there is some metaphysical doubt as to the material
facts . . . . Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Scott
v. Harris, 550 U.S. 372, 380 (2007) (alteration in
original) (internal quotation marks omitted).
parties do not dispute the facts, but make only legal
arguments regarding the applicable statute of limitations.
The Court finds the following undisputed facts:
lawsuit involves real property located at 7501 Midnight
Rambler Street, Las Vegas, NV 89149-0119, and bearing
Assessor's Parcel Number 125-18-710-047 (the
“Property”). On or about November 30, 2004,
Plaintiff executed a promissory note related to the Property
naming Countrywide Home Loans, Inc.
(“Countrywide”), as the “Lender”, and
promising to pay $636, 663.00 (“Note”). On or
about November 30, 2004, Plaintiff also executed a deed of
trust related to the Property naming Countrywide as the
“Lender” (“Deed of Trust”). The Deed
of Trust and correlating Note encumbered the Property with an
indebtedness in the amount of $636, 663.00. Plaintiff
contacted Defendant, or its predecessor or agent, in
September, 2008, to discuss loan modification options.
Plaintiff was informed that she would have to be in default
before a loan modification would be forthcoming.
around October, 2009, in compliance with directions from
representatives of BAC Home Loans, Plaintiff missed a payment
on her mortgage. On or about January 22, 2010, Defendant,
through its trustee, filed a Notice of Default and Election
to Sell related to the Property in the official records of
Clark County, as document number 20100122-0003782
(“First Notice of Default”). The First Notice of
Default stated that because there was a “FAILURE TO PAY
THE INSTALLMENT OF PRINCIPAL, INTEREST AND IMPOUNDS WHICH
BECAME DUE ON 10/01/2009 … the present beneficiary
under such deed of trust has executed and delivered to
RECONTRUST COMPANY, N.A., a written Declaration of Default
and Demand for sale… and has declared and does hereby
declare all sums secured thereby immediately due and payable
and has elected and dues hereby elect to cause the trust
property to be sold to satisfy the obligations secured
January 29, 2010, the Deed of Trust was assigned to HSBC Bank
USA, National Association, as Trustee on behalf of CSFB, ARMT
2004-5 Trust Fund. As a result of the above quoted
information from the First Notice of Default, Defendant
accelerated the Note and Deed of Trust on January 22, 2010,
or the day that the First Notice of Default was executed. On