United States District Court, D. Nevada
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,
ANDRE BEROUD, et al., Defendants.
M. Navarro, Chief Judge.
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
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).
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).
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).
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
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).
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.
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.
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
The Scope and ...