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Bank of New York Mellon v. Beroud

United States District Court, D. Nevada

March 23, 2018

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2005-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-35CB, Plaintiff,
v.
ANDRE BEROUD, et al., Defendants.

          ORDER

          Gloria M. Navarro, Chief Judge.

         Pending before the Court is the Motion for Partial Summary Judgment, (ECF No. 37), filed by The Bank of New York Mellon (“Plaintiff”). Defendants United Legal Services, Inc. (“ULS”) and Sun City Aliante Community Association (“HOA”) filed Responses, (ECF Nos. 39, 40). Additionally, Defendant Red Rock Financial Services, LLC (“Red Rock”) filed a Joinder, (ECF No. 41), to ULS' Motion. Plaintiff filed a Reply, (ECF No. 43). For the reasons discussed herein, Plaintiff's Motion is GRANTED.[1]

         I. BACKGROUND

         This case arises out of the non-judicial foreclosure on real property located at 7937 Song Thrush Street, North Las Vegas, Nevada 89084 (the “Property”). (Compl. ¶ 6, ECF No. 1). On May 26, 2005, Andre Beroud (“Beroud”) obtained a loan in the amount of $155, 000.00 evidenced by a note and secured by a deed of trust (“DOT”) recorded on June 1, 2005. (See Deed of Trust, Ex. 1 to Pl.'s Mot. Summ. J. (“MSJ”), ECF No. 38-1). Plaintiff was subsequently assigned the DOT on November 8, 2011, and recorded the assignment on November 14, 2011. (See Assignment of Deed of Trust, Ex. 2 to MSJ, ECF No. 38-1).

         Beroud failed to pay HOA all amounts due and HOA, through its agent Red Rock, recorded a lien for delinquent assessments. (See Lien for Delinquent Assessments, Ex. 3 to MSJ, ECF No. 38-1). On April 13, 2012, Red Rock, on behalf of HOA, recorded a notice of default and election to sell pursuant to the lien. (See Notice of Default and Election to Sell, Ex. 4 to MSJ, ECF No. 38-1). On September 18, 2013, HOA, through its agent ULS, recorded a notice of foreclosure sale. (See Notice of Foreclosure Sale, Ex. 5 to MSJ, ECF No. 38-1). HOA foreclosed on the Property on October 11, 2013, and a foreclosure deed was recorded in favor of Defendant 7937 Song Thrush Trust (the “Trust”) on the same day. (See Foreclosure Deed Upon Sale, Ex. 6 to MSJ, ECF No. 38-1).

         Plaintiff filed its Complaint on April 14, 2017, asserting the following causes of action arising from the foreclosure and subsequent sale of the Property: (1) quiet title and declaratory relief against all Defendants; (2) judicial foreclosure against Beroud; (3) breach of contract against Beroud; (4) injunctive relief against the Trust; (5) breach of Nevada Revised Statute (“NRS”) § 116.1113 against HOA, Red Rock, and ULS; (6) wrongful foreclosure against HOA, Red Rock, and ULS; and (7) violation of the Nevada Deceptive Trade Practices Act under NRS Chapter 598 against HOA, Red Rock, and ULS. (Compl. ¶¶ 24-91).

         II. LEGAL STANDARD

         The 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. 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. 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 (1986).

         In 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. 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. 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. 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. 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. Celotex Corp., 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. 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. Id. at 249-50.

         III. DISCUSSION

         Plaintiff moves for partial summary judgment on its first cause of action for quiet title and declaratory relief. (MSJ 2:1-2, ECF No. 37). The Court first considers 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), before turning to the merits of Plaintiff's Motion.

         A. The Scope and ...


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