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My Home Now, LLC v. Citibank, N.A.

United States District Court, D. Nevada

February 7, 2018

MY HOME NOW, LLC, Plaintiffs,
v.
CITIBANK, N.A., et al., Defendants.

          ORDER

         Presently 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).

         I. Facts

         The 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. 45).

         In June 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.

         Osborn 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.

         After 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.

         The 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. Id.

         On 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).

         On 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 office. Id.

         In 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. 45).

         In the instant motions, My Home Now moves for summary judgment as to its claim against Citibank for declaratory relief and quiet title. Id. . . .

         II. Legal Standard

         The 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).

         For 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.

         In 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).

         By 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).

         If the 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. 1987).

         In 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.

         At 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. at 249-50.

         III. Discussion

         In My 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.

         Conversely, 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).

         Under 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 ...


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