United States District Court, D. Nevada
DITECH FINANCIAL, a Delaware Limited Liability Company, Plaintiff,
NEVADA ASSOCIATION SERVICES, INC., a Domestic Corporation; PECCOLE RANCH COMMUNITY ASSOCIATION, a Domestic Non-Profit Cooperative Corporation; KEYNOTE PROPERTIES, LLC; and DOES 25 though 10 Inclusive, and ROES 1 through 10, inclusive, Defendants. KEYNOTE PROPERTIES, LLC, a Nevada limited liability company, Defendant/Counterclaimant,
DITECH FINANCIAL, LLC a Delaware Limited Liability Company, Plaintiff/Counterdefendant.
M. Navarro, Chief Judge United States District Court
before the Court is the Motion to Dismiss or, in the
alternative, Motion for Summary Judgment, (ECF No. 69), filed
by Defendants Peccole Ranch Community Association
(“HOA”) and Nevada Association Services, LLC
(“NAS”) (collectively “Defendants”).
Plaintiff Ditech Financial, LLC (“Plaintiff”)
filed a Response, (ECF No. 70), and Defendants filed a Reply,
(ECF No. 73).
pending before the Countermotion for Summary Judgment, (ECF
No. 71), filed by Plaintiff Ditech Financial, LLC
(“Plaintiff”). Defendants filed a Response, (ECF
No. 74), and Plaintiff filed a Reply, (ECF No. 76). For the
reasons set forth herein, Plaintiff's Motion is
GRANTED, and Defendant's Motion is
present action arises from the non-judicial foreclosure of
the real property located at 9740 Ravine Ave., Las Vegas,
Nevada 89117 (“the Property”). On April 7, 2005,
Carolyn M. Brown obtained a loan in the amount of $245, 000
from GMAC Mortgage Corporation (“GMAC”) that was
secured by a Deed of Trust on the Property. (Deed of Trust,
Ex. C to Defendants' Mot. to Dismiss (“MTD”),
ECF No. 69-3). Federal National Mortgage Association
(“Fannie Mae”) purchased the loan in August 2006,
and has owned it ever since. (See Ex. 1 to
Plaintiff's Mot. for Summ. J. (“MSJ”) ¶
5, ECF No. 71-1). On October 21, 2016, GMAC recorded an
assignment of the Deed of Trust to Plaintiff. (Ex. 4 to
Plaintiff's MSJ, ECF No. 71-4).
August 26, 2011, NAS, acting on behalf of the HOA, recorded a
Notice of Delinquent Assessment Lien against the Property.
(Ex. 5 to Plaintiff's MSJ, ECF No. 71-5). On May 21,
2013, the HOA sold the property to Defendant Keynote
Properties, LLC (“Keynote”) for $7, 200. (Ex. 7
to Plaintiff's MSJ, ECF No. 71-7).
Amended Complaint, Plaintiff asserts the following causes of
action: (1) declaratory relief under 12 U.S.C. §
4617(j)(3) against Keynote; (2) quiet title against Keynote;
(3) declaratory relief under the Fifth and Fourteenth
Amendments against Keynote; (4) quiet title under the Fifth
and Fourteenth Amendments against Keynote; (5) wrongful
foreclosure against NAS and the HOA; (6) negligence against
NAS and the HOA; and (7) negligence per se against NAS and
the HOA. (Am. Compl. ¶¶ 48-104, ECF No. 67).
Federal Rules of Civil Procedure provide for summary
adjudication 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
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. See Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party's
favor.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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
determining summary judgment, a court applies a
burden-shifting analysis. “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). In 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 nonmoving 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.
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 Corp., 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,
477 U.S. at 249. 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.
instant Motions implicate two overarching legal questions to
be addressed by the Court: (1) the interplay between Nevada
Revised Statute § 116.3116 and 12 U.S.C. § 4617;
and (2) the impact of the Ninth Circuit's ruling in
Bourne Valley Court Trust v. Wells Fargo Bank, NA,
832 F.3d 1154 (9th Cir. 2016), cert. denied, No.
16-1208, 2017 WL 1300223 (U.S. June 26, 2017). In Bourne
Valley, the Ninth Circuit found the notice scheme in NRS
§ 116.3116 to be facially unconstitutional. This ruling
alone is ...