United States District Court, D. Nevada
C. JONES, United States District Judge
case arises from the foreclosure of a residential property
pursuant to a homeowners association lien. Now pending before
the Court is a Motion for Summary Judgment. (ECF No. 41.) For
the reasons given herein, the Court grants the motion.
FACTS AND PROCEDURAL BACKGROUND
October 2007, non-party Laura Kerr gave non-party Stearns
Lending, Inc. a promissory note for $196, 000 ("the
Note") to purchase real property at 3247 Modena Drive,
Sparks, Nevada 89434 ("the Property"), secured by a
first deed of trust ("the "DOT')- (Compl.
¶¶ 8, 13, ECF No. 1.) The DOT identified non-party
Mortgage Electronic Registration Systems, Inc.
("MERS") as the beneficiary and as "nominee
for Lender and Lender's successors and assigns, "
and non-party Stewart Title of Northern Nevada as the
trustee. The Property is governed by a set of codes,
covenants, and restrictions (CC&Rs) that establish, among
other things, the homeowner's obligation to pay dues and
assessments; that obligation is enforced by Defendant
D'Andrea Community Association (the "HOA").
(Id. at ¶ 3.) On or about October 13, 2011,
MERS recorded an assignment of the DOT and the Note to
non-party Bank of America, N.A. ("BOA"). Another
assignment was recorded on May 6, 2013, transferring
BOA's interest to Plaintiff Nationstar Mortgage, LLC
purchasing the home, Ms. Kerr failed to pay assessments under
the CC&Rs, and the HOA recorded a notice of delinquent
assessment lien on August 12, 2011, a notice of default and
election to sell ("NOD") on May 3, 2013, and a
notice of foreclosure sale ("NOS") on October 21,
2013. The Property was ultimately sold to Defendant LVDG LLC
Series 171 ("LVDG") at auction on December 19, 2013
for $5, 233.
around July 21, 2015, Nationstar filed this action against
the HOA and LVDG, primarily seeking a declaration that the
foreclosure sale did not extinguish its interest in the DOT.
On May 24, 2016, Nationstar filed a motion for summary
judgment, arguing that 12 U.S.C. § 46l7(j)(3) preempts
NRS 116.3116, and prevents the foreclosure of an HOA
superpriority lien from extinguishing a property interest
held by Federal National Mortgage Association (Fannie Mae)
while under the FHFA's conservatorship. (Mot. Summ. J.,
ECF No. 27.) The motion was fully briefed on August 15, 2016,
and a hearing was held on October 11, 2016. The Court denied
the motion on January 4, 2017, finding a question of fact
exists as to the existence, nature, and timing of Fannie
Mae's purported interest in the subject property. (Order,
ECF No. 40.)
August 12, 2016, while Nationstar's summary judgment
motion was pending, the Ninth Circuit issued its ruling in
Bourne Valley Court Tr. v. Wells Fargo Bank, NA, 832
F.3d 1154, 1156 (9th Cir. 2016), cert, denied, 137
S.Ct. 2296 (2017), which established that the "opt-in
notice scheme" of NRS 116.3116-included in the statute
until its amendment in October 2015-was facially
unconstitutional because it violated the procedural due
process rights of mortgage lenders. In light of this ruling,
Nationstar requested leave to file a renewed motion for
partial summary judgment, which the Court granted.
(See Order, ECF No. 46.) The renewed motion, which
is presently before the Court, argues simply that, under
Bourne Valley, the HOA sale could not have
extinguished Nationstar's interest in the property. (Mot.
Summ. J., ECF No. 41.)
must grant summary judgment when "the movant shows 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). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. 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).
determining summary judgment, a court uses a burden-shifting
scheme. 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." C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In 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 nonmoving 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.
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 (1970). If the moving party
meets its initial burden, the burden then shifts to the
opposing party to establish a genuine issue of material fact.
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. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
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 Fed. R. Civ. P. 56(e); Celotex
Corp., 477 U.S. at 324.
summary judgment stage, 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, 477 U.S. at 249. 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. at 249-50. Notably, facts are only viewed in
the light most favorable to the non-moving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even where
the underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, "a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment."
Quiet Title and ...