United States District Court, D. Nevada
before the court is defendant/counter claimant SFR
Investments Pool 1, LLC's (“SFR”) motion for
summary judgment. (ECF No. 48). Plaintiff/counter defendant
JPMorgan Chase Bank, N.A. (“JPMorgan”) responded
(ECF No. 50), to which SFR replied (ECF No. 53).
before the court is JPMorgan's motion for summary
judgment. (ECF No. 49). SFR responded (ECF No. 51), to which
JPMorgan replied (ECF No. 52).
case involves a dispute over real property located at 9875
Maspalomas Street, Las Vegas, NV 89178 (the
“property”). On April 22, 2008, a deed of trust
listing Gordon S. Adam (the “borrower”) as the
borrower and First Horizon Home Loans (the
“lender” or “First Horizon”) as the
lender was recorded. (ECF No. 48). The deed of trust granted
the lender a security interest in the property to secure
repayment of the loan. Id.
August 1, 2011, Absolute Collection Services, LLC
(“Absolute”), as agent of Viva Valencia/Viva
Venture Homeowner's Association (the “HOA”),
recorded a notice of delinquent assessment against the
property. (ECF No. 49). On October 21, 2011, Absolute, on
behalf of the HOA, recorded a notice of default and election
to sell under homeowner's association lien against the
property. Id. Absolute mailed the notice to all
interested parties, including the lender. (ECF No. 48).
then recorded a notice of foreclosure sale on February 24,
2012 and mailed the notice to all interested parties,
including the lender. (ECF No. 48). JPMorgan received notice
of the sale and executed the certified mail receipt.
Id. The notice of sale was also published in the
Nevada Legal News for three consecutive weeks. Id.
17, 2012, pursuant to the notice of trustee's sale, a
non-judicial foreclosure sale occurred, whereby SFR acquired
interest in the property for $7, 500.00. (ECF No. 48). There
were multiple bidders at the sale. Id.
19, 2012, a trustee's deed upon sale was recorded against
the property vesting title in SFR. (ECF No. 48). SFR has
remained as the owner of record since that date. On October
30, 2012, a corporate assignment of deed of trust was
recorded assigning JPMorgan as the beneficiary under the deed
of trust. (ECF No. 49).
15, 2016, JPMorgan filed the underlying complaint, asserting
claims for quiet title and declaratory relief against SFR.
(ECF No. 1). JPMorgan alleges the deed of trust was not
extinguished at the foreclosure sale and/or that SFR took
subject to the deed of trust. (ECF No. 1).
November 29, 2016, SFR filed its answer and counterclaim for
declaratory relief/quiet title and injunctive relief against
JPMorgan and the borrower. (ECF No. 20). The borrower was
defaulted by clerk's order on August 2, 2017. (ECF No.
instant motion, SFR moves for summary judgment against
JPMorgan on its claims for quiet title and permanent
injunction. (ECF No. 48). Specifically, SFR argues title
should be quieted in its favor, the deed of trust held by
JPMorgan should be expunged from the title, and JPMorgan and
the borrower should be permanently enjoined from any sale or
transfer that would affect SFR's title in the property.
(ECF No. 48). JPMorgan also moves for summary judgment
against SFR as to its claims for quiet title and declaratory
relief. (ECF No. 49). . . .
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.
Quiet Title 
SFR's motion, it contends that summary judgment in its
favor is proper because, inter alia, the foreclosure
sale extinguished JPMorgan's deed of trust pursuant to
NRS 116.3116 and SFR Investments. (ECF No. 48). SFR
further contends that the foreclosure sale should not be set
aside because the price paid at the foreclosure sale was
commercially reasonable, JPMorgan 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”),
JPMorgan failed to tender the super-priority portion of the
lien, and because there was no due process violation. (ECF
No. 48). The court agrees.
JPMorgan 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)
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 ...