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Bank of America, N.A. v. BTK Properties, LLC

United States District Court, D. Nevada

February 27, 2018

BANK OF AMERICA, N.A., Plaintiffs,
v.
BTK PROPERTIES, LLC, et al., Defendants.

          ORDER

         Presently before the court is plaintiff Bank of America, N.A.'s ("BANA") motion for summary judgment. (ECF No. 36). Defendant BTK Properties LLC ("BTK") (ECF No. 50) and defendant La Paloma Homeowners Association (the "HOA") (ECF No. 49) filed responses, to which BANA replied (ECF Nos. 51, 52).

         Also before the court is the HOA's motion for summary judgment. (ECF No. 37). BANA filed a response (ECF No. 47), to which the HOA replied (ECF No. 53).

         Also before the court is BTK's motion for summary judgment. (ECF No. 38). BANA filed a response (ECF No. 46), the HOA joined (ECF No. 48), and BTK replied (ECF No. 54).

         I. Facts

         This case involves a dispute over property that was subject to a homeowners' association superpriority lien for delinquent assessment fees. On February 6, 2007 Antonio Tanseco obtained a loan from BANA in the amount of $143, 920.00 to purchase the property located at 7701 W. Robindale Road #245, Las Vegas, Nevada 89113 (the "property"). (ECF No. 1).

         On December 30, 2011, defendant Terra West Collections Group LLC d/b/a Assessment Management Services ("TWC"), acting on behalf of the HOA, recorded a notice of delinquent assessment lien. (ECF No. 1).

         On June 6, 2012, TWC, on behalf of the HOA, recorded a notice of default and election to sell under homeowners association lien. (ECF No. 1). The notice of default stated the amount due to the HOA was $2, 973.27. Id.

         On July 19, 2012, BANA's prior counsel Miles, Bauer, Bergstrom & Winters, LLP (“MBBW”) received a payoff demand from TWC in the amount of $3, 364.24. (ECF No. 1). MBBW calculated the superpriority portion to be $1, 641.88 and tendered that amount to TWC on August 2, 2012, which TWC allegedly rejected. (ECF No. 1).

         On April 15, 2013, TWC recorded a notice of default and election to sell to satisfy the delinquent assessment lien. (ECF No. 1). The amount due to the HOA was now listed as $4, 618.77. Id.

         On April 23, 2014, TWC recorded a notice of trustee's sale, which stated the amount due to the HOA was $8, 543.67. (ECF No. 1).

         On August 18, 2014, defendant BTK purchased the property at the foreclosure sale for $10, 000.00. (ECF No. 1). A foreclosure deed in favor of BTK was recorded on September 2, 2014. (ECF No. 1).

         On June 30, 2016, BANA filed the underlying complaint, alleging nine causes of action: (1) quiet title/declaratory judgment against all defendants; (2) preliminary and permanent injunction against BTK; (3) unjust enrichment against BTK; (4) wrongful foreclosure against the HOA and TWC; (5) negligence against the HOA and TWC; (6) negligence per se against the HOA and TWC; (7) breach of contract against the HOA; (8) misrepresentation against the HOA; and (9) tortious interference with contract against all defendants. (ECF No. 1).

         In an order dated February 28, 2017, the court dismissed BANA's claims (2) through (9). (ECF No. 31). Accordingly, only BANA's claim for quiet title/declaratory relief remains.

         In the instant motion, BANA, the HOA, and BTK move for summary judgment. (ECF Nos. 36, 37, 38). The court will address each as it sees fit.

         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[1]

         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 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.”).

         Section 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 ...


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