United States District Court, D. Nevada
before the court is plaintiff Bank of America, N.A.'s
(“BOA”) motion for partial summary judgment. (ECF
No. 30). Defendants Williston Investment Group, LLC,
(“Williston”) and Hollow De Oro Homeowners'
Association (“the HOA”) filed responses (ECF Nos.
40, 41), to which plaintiff replied (ECF Nos. 42, 43).
before the court is defendant Williston's motion for
summary judgment. (ECF No. 31). Plaintiff filed a response
(ECF No. 38), to which defendant replied (ECF No. 44).
before the court is defendant HOA's motion for summary
judgment. (ECF No. 32). Plaintiff filed a response (ECF No.
39), to which defendant replied (ECF No. 45).
case involves a dispute over real property located at 2117
Summer Lily Avenue, North Las Vegas, Nevada (the
“property”). On November 24, 2008, Magdelyn
Vasquez-Castro obtained a loan in the amount of $212, 199
from non-party Universal American Mortgage Company, LLC,
(“UAMC”) to purchase the property. (ECF No. 1).
The loan was secured by a deed of trust recorded on November
26, 2008. Id.
March 22, 2010, the deed of trust was assigned to BAC Home
Loans Servicing, LP, via an assignment of deed of trust
(recorded on April 2, 2010). Id.; (ECF No. 30-3). On
July 1, 2011, BAC Home Loans Servicing, LP, merged with
plaintiff. (ECF No. 1). The note and senior deed of trust are
insured by the Federal Housing Administration
March 15, 2012, defendant Absolute Collection Services
(“ACS”), acting on behalf of the HOA, recorded a
notice of delinquent assessment lien, stating an amount due
of $1, 061.04. Id. On June 20, 2012, ACS recorded a
notice of default and election to sell to satisfy the
delinquent assessment lien, stating an amount due of $1,
October 16, 2012, NAS recorded a notice of trustee's
sale, stating an amount due of $3, 827.43 and an anticipated
sale date of December 11, 2012. Id. On July 16,
2012, plaintiff requested a ledger from the HOA, through ACS,
that identified the super-priority amount owed to the HOA.
Id. In the request, plaintiff stated “[Nine
months of assessments for common expenses incurred before the
date of your notice of delinquent assessment] is the amount
[BOA] should be required to rightfully pay to fully discharge
its obligations to the HOA per NRS 116.3102 and my client
hereby offers to pay that sum upon presentation of adequate
proof of the same by the HOA.” (ECF No. 1-1). On July
26, 2012, the HOA, through ACS, responded by requesting proof
that plaintiff held an interest in the property. Id.
Neither party offers evidence that plaintiff replied to this
March 12, 2013, the HOA foreclosed on the property. (ECF No.
1). Williston purchased the property at the foreclosure sale
for $7, 600. Id. A foreclosure deed in favor of
Williston was recorded on March 19, 2013. Id.
15, 2015, BOA filed the underlying complaint, alleging four
causes of action: quiet title against all defendants; breach
of NRS 116.1113 against the HOA and ACS; wrongful foreclosure
against the HOA and ACS; and injunctive relief against
Williston. Id. On March 9, 2017, the court granted
defendant HOA's motion to dismiss in part, thereby
dismissing plaintiff's claims for breach of NRS 116.1113
and wrongful foreclosure. (ECF No. 39).
instant motions, plaintiff, defendant HOA, and defendant
Williston all move for summary judgment in their favor. (ECF
Nos. 30, 31, 32).
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 a 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
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “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).
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 non-moving 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.
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, 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 v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
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.
initial matter, the court takes judicial notice of the
following recorded documents: the first deed of trust (ECF
No. 30-1); the assignment to BOA; (ECF No. 30-3); the notice
of delinquent assessment (ECF No. 30-4); the notice of
default and election to sell (ECF No. 30-5); the notice of
trustee's sale (ECF No. 30-6); and the trustee's deed
upon sale (ECF No. 30-8). 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., Inv. v. Crest
Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).
Nevada law, “[a]n action may be brought by any person
against another who claims an estate or interest in real
property, adverse to the person bringing the action for the
purpose of determining such adverse claim.” Nev. Rev.
Stat. § 40.010. “A plea to quiet title does not
require any particular elements, but each party must plead
and prove his or her own claim to the property in question
and a plaintiff's right to relief therefore depends on
superiority of title.” Chapman v. Deutsche Bank
Nat'l Trust Co., 302 P.3d 1103, 1106 (Nev. 2013)
(citations and internal quotation marks omitted). Therefore,
for plaintiff to succeed on its quiet title action, it needs
to show that its claim to the property is superior to all
others. See also Breliant v. Preferred Equities
Corp., 918 P.2d 314, 318 (Nev. 1996) (“In a quiet
title action, the burden of proof rests with the plaintiff to
prove good title in himself.”).
116.3116(1) of the Nevada Revised Statutes gives an HOA a
lien on its homeowners' residences for unpaid assessments
and fines; moreover, NRS 116.3116(2) gives priority to that
HOA lien over all other liens and encumbrances with limited
exceptions-such as “[a] first security interest on the
unit recorded before the date on which the assessment sought
to be enforced became delinquent.” Nev. Rev. Stat.
statute then carves out a partial exception to subparagraph
(2)(b)'s exception for first security interests.
See Nev. Rev. Stat. § 116.3116(2). In SFR
Investment Pool 1 v. BOA, the Nevada Supreme Court
provided the following explanation:
As to first deeds of trust, NRS 116.3116(2) thus splits an
HOA lien into two pieces, a superpriority piece and a
subpriority piece. The superpriority piece, consisting of the
last nine months of unpaid HOA dues and maintenance and
nuisance-abatement charges, is “prior to” a first
deed of trust. The subpriority piece, consisting ...