United States District Court, D. Nevada
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).
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).
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.
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).
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).
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.
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).
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.
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).
instant motions, plaintiff and defendant Premier both move
for summary judgment in their favor. (ECF Nos. 33, 34).
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. 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.
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.”).
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).
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