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The Bank of New York Mellon v. Desert Shores Community Association

United States District Court, D. Nevada

March 9, 2018



         Presently before the court is plaintiff Bank of New York Mellon's (“BNYM”) motion for summary judgment. (ECF No. 33). Defendant Premier One Holdings, Inc. (“Premier”) filed a response (ECF No. 43), to which plaintiff replied (ECF No. 47).

         Also before the court is defendant's motion for summary judgment. (ECF No. 34). Plaintiff filed a response (ECF No. 42), to which defendant replied (ECF No. 46).

         I. Facts

         This case involves a dispute over real property located at 8416 Haven Brook Court, Las Vegas, Nevada, 89128 (the “property”). (ECF No. 1). On June 27, 2005, Sung Hee Park purchased the property. Id. Park obtained a loan in the amount of $369, 000 from Mylor Financial Group, Inc. (“Mylor”) to finance the purchase. Id. The loan was secured by a deed of trust recorded on August 10, 2005. Id.; (ECF No. 33-1). The deed of trust lists Mylor as the lender and Mortgage Electronic Registration Systems, Inc. as the beneficiary “solely as a nominee for Lender and Lender's successors and assigns.” (ECF No. 33-1). The covenants, conditions, and restrictions (“CC&R”) governing the property contained a mortgage protection clause. (ECF No. 33-3).

         On September 28, 2010, MERS assigned its interest in the deed of trust to plaintiff via a corporate assignment of deed of trust (recorded on September 30, 2010). (ECF No. 33-2).

         Park stopped paying dues to Desert Shores Community Association (“the HOA”). On January 11, 2012, Nevada Association Services, Inc. (“NAS”), acting on behalf of the HOA, recorded a notice of delinquent assessment lien, stating an amount due of $774.84. (ECF No. 33-5). On March 9, 2012, NAS, acting on behalf of the HOA, recorded a notice of default and election to sell to satisfy the delinquent assessment lien, stating an amount due of $2, 943.76. (ECF No. 1); (ECF No. 33-7).

         Bank of America National Association (“BOA”) was plaintiff's predecessor in interest. (ECF Nos. 1, 33). On July 27, 2012, Miles, Bauer, Bergstrom & Winters LLP (“MBBW”), acting on behalf of BOA, sent NAS a letter requesting a payoff ledger. (ECF No. 33-8). NAS did not provide MBBW with a ledger. Id. Based on ledgers from different properties under the same HOA, BOA sent NAS a check for $864.63 on August 2, 2012, which represented BOA's estimate of nine months of assessments and reasonable collection costs. Id. The HOA, through NAS, did not accept or cash the check. Id.

         On September 9, 2013, NAS recorded a notice of trustee's sale, stating an amount due of $5, 037.71 and an anticipated sale date of September 30, 2013. (ECF No. 33-10).

         On September 30, 2013, the HOA foreclosed on the property. (ECF No. 33-11). Defendant purchased the property at the foreclosure sale for $23, 500. Id. A foreclosure deed in favor of defendant was recorded on October 13, 2014. Id.

         On July 1, 2016, plaintiff filed its complaint, alleging quiet title/declaratory judgment against all defendants, breach of NRS 116.1113 against the HOA and NAS, wrongful foreclosure against the HOA and NAS, and injunctive relief against Premier. (ECF No. 1).

         In the instant motions, plaintiff and defendant Premier both move for summary judgment in their favor. (ECF Nos. 33, 34).

         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

         As an initial matter, claim (4) of plaintiff's complaint will be dismissed without prejudice as the court follows the well-settled rule in that a claim for “injunctive relief” standing alone is not a cause of action. See, e.g., In re Wal-Mart Wage & Hour Emp't Practices Litig., 490 F.Supp.2d 1091, 1130 (D. Nev. 2007); Tillman v. Quality Loan Serv. Corp., No. 2:12-CV-346 JCM RJJ, 2012 WL 1279939, at *3 (D. Nev. Apr. 13, 2012) (finding that “injunctive relief is a remedy, not an independent cause of action”); Jensen v. Quality Loan Serv. Corp., 702 F.Supp.2d 1183, 1201 (E.D. Cal. 2010) (“A request for injunctive relief by itself does not state a cause of action.”).

         The court takes judicial notice of the following recorded documents: the first deed of trust (ECF No. 33-1); the assignment to plaintiff (ECF No. 33-2); the notice of delinquent assessment (ECF No. 33-5); the notice of default and election to sell (ECF No. 33-7); the notice of foreclosure sale (ECF No. 33-10); and the foreclosure deed upon sale (ECF No. 33-11). See, e.g., United States v. Corinthian Colls., 655 F.3d 984, 998-99 (9th Cir. 2011) (holding that a court may take judicial notice of public records if the facts noticed are not subject to reasonable dispute); Intri-Plex Tech., Inv. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).

         i. Quiet title

         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 a party 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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