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