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HSBC Bank USA v. Lee Family Properties, LLC

United States District Court, D. Nevada

March 23, 2018

HSBC BANK USA, et al., Plaintiffs,


         Presently before the court is plaintiff HSBC Bank USA, National Association, as trustee for GSAA Home Equity Trust 2005-6, Asset-Backed Certificates Series 2005-6's (“HSBC”) motion for summary judgment. (ECF No. 57). Defendants Lee Family Properties, LLC, Series XVII (“Lee”) and Copper Sands Homeowners Association (“the HOA”) filed responses (ECF Nos. 58, 59), to which plaintiff replied (ECF No. 63).

         I. Facts

         This case involves a dispute over real property located at 8101 West Flamingo Road #1051, Las Vegas, Nevada (the “property”). (ECF No. 1).

         On February 15, 2005, Leticia R. McCoy purchased the property pursuant to a grant, bargain, sale deed from the HOA. Id. McCoy obtained a loan in the amount of $117, 600 from GreenPoint Mortgage Funding, Inc. (“GreenPoint”) to finance the purchase. Id. The loan was secured by a deed of trust recorded on February 28, 2005. Id.; (ECF No. 1-6). The deed of trust lists GreenPoint 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. 1- 6). The covenants, conditions, and restrictions (“CC&R”) governing the property contained a mortgage protection clause. (ECF No. 1-4).

         On September 24, 2011, MERS assigned its interest in the deed of trust to Bank of America, N.A. (“BOA”), which was recorded on October 6, 2011. (ECF No. 1-8).

         On January 13, 2012, Alessi & Koenig, LLC (“Alessi”), acting on behalf of the HOA, recorded a notice of delinquent assessment lien, stating an amount due of $1, 196.50. (ECF No. 1-10). On June 25, 2012, Alessi, 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 $3, 101. (ECF No. 1-11).

         On July 23, 2012, Miles, Bauer, Bergstrom & Winters LLP (“MBBW”), acting on behalf of BOA, sent Alessi a letter requesting a payoff ledger. (ECF No. 57). In response, Alessi demanded $3, 988.70, but did not include a statement of the super-priority lien amount. Id. The payoff demand included a breakdown of past due assessments, fees, and costs, and an account ledger from the HOA showing that the monthly assessment on the property was $164.45. Based on MBBW's calculations, BOA sent Alessi a check for $2, 269.77 on August 16, 2012, which represented BOA's estimate of nine months of assessments and reasonable collection costs. Id. The HOA, through Alessi, did not accept or cash the check. Id.

         On January 10, 2013, BOA assigned its interest in the deed of trust to plaintiff via a corporate assignment of deed of trust, which was recorded on January 11, 2013. (ECF No. 1-9).

         On July 31, 2013, Alessi recorded a notice of trustee's sale, stating an amount due of $7, 507.83 and an anticipated sale date of August 28, 2013. (ECF No. 1-12).

         On October 2, 2013, the HOA foreclosed on the property. (ECF No. 1). The HOA purchased the property at the foreclosure sale for $8, 045.83. Id. A foreclosure deed in favor of the HOA was recorded on May 27, 2014. (ECF No. 1-13). Also on May 27, 2014, the HOA quitclaimed its interest to Lee via quitclaim deed. (ECF No. 1-14).

         On March 23, 2016, plaintiff filed the underlying complaint, alleging (1) quiet title; (2) preliminary and permanent injunction; (3) wrongful foreclosure; (4) negligence; (5) negligence per se; (6) breach of contract; (7) misrepresentation; (8) unjust enrichment; (9) tortious interference with contract; and (10) equitable subrogation. (ECF No. 1).

         On March 1, 2017, the court granted in part defendant HOA's motion to dismiss, thereby dismissing plaintiff's unjust enrichment claim against the HOA. (ECF No. 46).

         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 (2) 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 ...

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