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Bank of New York Mellon v. Southern Highlands Community Association

United States District Court, D. Nevada

March 9, 2018

THE BANK OF NEW YORK MELLON, Plaintiff(s),
v.
SOUTHERN HIGHLANDS COMMUNITY ASSOCIATION, et al., Defendant(s).

          ORDER

         Presently 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. 67).

         Also 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).

         Also 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. 69).

         I. Facts

         This 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).

         On 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).

         Hidalgo 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. 57-3).

         On 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).

         On 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).

         On 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. Id.

         On 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).

         In the instant motions, plaintiff and defendant GSDT both move for summary judgment in their favor. (ECF Nos. 47, 57).

         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. Tramp. 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. ...


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