United States District Court, D. Nevada
before the court is plaintiff My Home Now, LLC's
(“My Home Now”) renewed motion for summary
judgment. (ECF No. 45). Defendant Citibank, N.A.
(“Citibank”) filed a response and renewed
cross-motion for summary judgment (ECF No. 48), to which My
Home Now replied (ECF No. 51).
present case involves a dispute over real property located at
5381 Cholla Cactus Avenue, Las Vegas, NV 89141,
APN#176-25-816-132 (the “property”). (ECF No.
2007, Stephanie Osborn (“Osborn”) purchased the
property. Id. The property was financed through
American Home Mortgage via a deed of trust recorded with the
Clark County Recorder as instrument no. 20070627:03315.
Id. On February 7, 2012, the deed of trust was
transferred to Citibank via an assignment of deed of trust
recorded in the office of the Clark County Recorder as
instrument no. 20120207:00443. Id.
became delinquent in the payment of the homeowner association
dues owed to Cactus Hill Square Homeowners Association (the
“HOA”). Id. On March 20, 2012, the HOA
recorded a notice of delinquent assessment lien. Id.
On September 11, 2012, Osborn failed to pay the HOA's
assessment lien. Id. The HOA then recorded a notice
of default and election to sell real property to satisfy
assessment lien. Id. The notice of default and
election to sell was mailed by certified mail to Osborn and
all parties of interest, including Citibank. Id.
Osborn failed to pay the HOA's assessment lien, the HOA
recorded a notice of trustee's sale. Id. This
notice was mailed to all interested parties, including Osborn
and Citibank. Id.
initial HOA foreclosure sale was set for July 17, 2013, but
the sale was postponed to April 16, 2014, and then again to
May 21, 2014. Id. On May 21, 2014, the property was
sold at foreclosure auction to Nevada Property Holdings, LLC
for $21, 000.00. Id. On June 12, 2014, My Home Now
acquired title to the property via quitclaim deed from Nevada
Property Holdings, LLC for $27, 333.00. Id. The
quitclaim deed was recorded with the Clark County Recorder.
November 26, 2014, My Home Now filed the underlying complaint
against Citibank and Osborn seeking quiet title/declaratory
relief, unjust enrichment, and injunctive relief. (ECF No.
1). My Home Now and Citibank filed counter motions for
summary judgment. (ECF Nos. 35, 37).
April 14, 2016, this court denied, without prejudice, My Home
Now and Citibank's motions for summary judgment. (ECF No.
41). The court instructed Citibank to comply with
Fed.R.Civ.P. 5.1(a)(1)(B) and file a notice of constitutional
question with the Nevada attorney general's office.
Id. Citibank failed to comply. Id. After
waiting a reasonable time, My Home Now filed a notice of
constitutional question with the attorney general's
advance of the attorney general's office opining on the
constitutionality of NRS 116, the Nevada Supreme Court issued
an opinion in Saticoy Bay LLC Series 350 Durango 104 v.
Wells Fargo Home Mortgage, a Division of Wells Fargo Bank,
N.A., 113 Nev.Adv.Op. 5, 388 P.3d 970 (Nev. 2017)
holding that NRS 116 does not violate due process if there is
no state actor. Id. Accordingly, on June 15, 2017,
My New Home renewed its summary judgment motion. (ECF No.
instant motions, My Home Now moves for summary judgment as to
its claim against Citibank for declaratory relief and quiet
title. Id. . . .
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.
Home Now's motion, it contends that summary judgment in
its favor is proper because, inter alia, the
foreclosure sale extinguished Citibank's deed of trust
pursuant to NRS 116.3116 and SFR Investments. (ECF
No. 45). My Home Now further contends that the foreclosure
sale should not be set aside because the price paid at the
foreclosure sale was commercially reasonable, Citibank has
not shown fraud, unfairness, or oppression as outlined in
Shadow Wood Homeowners Assoc. v. N.Y. Cmty. Bancorp.,
Inc., 366 P.3d 1105 (Nev. 2016) (“Shadow
Wood”), Citibank failed to tender the
super-priority portion of the lien, and because there was no
due process violation. (ECF No. 45). The court agrees.
Citibank argues summary judgment should be granted in its
favor because NRS 116's opt-in notice scheme was ruled
facially unconstitutional by Bourne Valley Court Trust v.
Wells Fargo Bank, N.A., 832 F.3d 1154 (9th Cir. 2016),
the grossly inadequate sale price paid for the property in
comparison to its fair market value renders the foreclosure
sale void, and because the Nevada Supreme Court's
decision in SFR Investments Pool 1, LLC v. U.S. Bank,
N.A., 130 Nev.Adv.Op. 75, 334 P.3d 408 (Nev. 2014) is
not retroactive to HOA sales conducted before the court's
decision. (ECF No. 48).
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 claimant to succeed on its quiet title action, it needs
to show that its claim to the property is superior to all