United States District Court, D. Nevada
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).
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).
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).
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).
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).
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.
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).
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.
April 23, 2014, TWC recorded a notice of trustee's sale,
which stated the amount due to the HOA was $8, 543.67. (ECF
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
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).
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.
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.
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.
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.”).
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 ...