United States District Court, D. Nevada
before the court is plaintiff Bank of New York Mellon's
("BNYM") motion for summary judgment. (ECF No. 57).
Defendant Grey Spencer Dr. Trust ("GSDT") filed a
response (ECF No. 64), to which plaintiff replied (ECF No.
before the court is defendant's motion for summary
judgment. (ECF No. 47). Plaintiff filed a response (ECF No.
56), to which defendant replied (ECF No. 62).
before the court is defendant's motion to strike
plaintiffs jury demand. (ECF No. 63). Plaintiff filed a
response (ECF No. 68), to which defendant replied (ECF No.
case involves a dispute over real property located at 4395
Grey Spencer Dr., Las Vegas, Nevada, 89141 (the
"property"). (ECF No. 1). On October 24, 2006,
Dagoberto Hidalgo purchased the property. Id.
Hidalgo obtained a loan in the amount of $732, 126 from
Countrywide Bank, NA. ("Countrywide") to finance
the purchase. Id. The loan was secured by a deed of
trust recorded on October 31, 2006. Id.; (ECF No.
57-1). The deed of trust lists Countrywide as the lender and
Mortgage Electronic Registration Systems, Inc.
("MERS") as the beneficiary "solely as a
nominee for Lender and Lender's successors and
assigns." (ECF No. 57-1). The covenants, conditions, and
restrictions ("CC&R") governing the property
contained a mortgage protection clause. (ECF No. 57-12).
March 8, 2010, MERS assigned its interest in the deed of
trust to plaintiff via a corporation assignment of deed of
trust (recorded on March 10, 2010). (ECF No. 57-2).
stopped paying dues to Southern Highlands Community
Association ("the HO A"). On September 1, 2009,
Alessi & Koenig, LLC ("Alessi"), acting on
behalf of the HO A, recorded a notice of delinquent
assessment lien, stating an amount due of $844.49. (ECF No.
November 20, 2009, Alessi, acting on behalf of the HO A,
recorded a notice of default and election to sell to satisfy
the delinquent assessment lien, stating an amount due of $1,
889. (ECF No. 57-4). On December 22, 2009, Alessi, acting on
behalf of the HO A, recorded a second notice of default and
election to sell to satisfy the delinquent assessment lien,
stating an amount due of $1, 889. (ECF No. 57-5). On November
16, 2010, Alessi, acting on behalf of the HO A, recorded a
third notice of default and election to sell to satisfy the
delinquent assessment lien, stating an amount due of $3,
201.04. (ECF No. 57-6). On January 7, 2011, Alessi, acting on
behalf of the HOA, recorded a fourth notice of default and
election to sell to satisfy the delinquent assessment lien,
stating an amount due of $2, 520.27. (ECF No. 57-7).
April 2, 2012, Alessi, acting on behalf of the HOA, recorded
a notice of trustee's sale, stating an amount due of $3,
570.85 and an anticipated sale date of April 25, 2012. (ECF
No. 57-8). On July 5, 2012, Alessi, acting on behalf of the
HOA, recorded a second notice of foreclosure sale, stating an
amount due of $2, 737.16 and an anticipated sale date of July
25, 2012. (ECF No. 57-9).
October 3, 2012, the HOA foreclosed on the property. (ECF No.
57-10). Defendant GSDT purchased the property at the
foreclosure sale for $8, 800. Id. A foreclosure deed
in favor of defendant GSDT was recorded on October 11, 2012.
March 9, 2016, plaintiff filed its complaint, alleging quiet
title/declaratory judgment against all defendants, breach of
NRS 116.1113 against the HOA and Alessi, wrongful foreclosure
against the HOA and Alessi, and injunctive relief against
GSDT. (ECF No. 1).
instant motions, plaintiff and defendant GSDT both move for
summary judgment in their favor. (ECF Nos. 47, 57).
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. Tramp.
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. at 249-50.