United States District Court, D. Nevada
before the court is plaintiff HSBC Bank USA, National
Association, as trustee on behalf of Ace Securities Corp.
Home Equity Loan Trust on behalf of Registered Holders of ACE
Securities Corp. Home Equity Loan Trust, Series 2006, ASAP4,
Asset Backed Pass-Through Certificates'
(“HSBC”) first motion for summary judgment. (ECF
No. 30). Defendant Williston Investment Group LLC
(“Williston”) filed a response (ECF No. 35), to
which plaintiff replied (ECF Nos. 38, 42).
before the court is plaintiff's second motion for summary
judgment. (ECF No. 31). Defendants Williston and Chateau
Bordeaux Owner's Association (“the HOA”)
filed responses (ECF No. 34, 36), to which plaintiff replied
(ECF Nos. 38, 41).
before the court is the HOA's motion for summary
judgment. (ECF No. 29). Plaintiff filed a response (ECF No.
33), to which the HOA replied (ECF No. 37).
case involves a dispute over real property located at 1632
North Torrey Pines Drive #202, Las Vegas, Nevada, 89108 (the
“property”). (ECF No. 1).
February 28, 2003, Christian Stoldal purchased the property
pursuant to a grant, bargain, sale deed. Id. Stoldal
obtained a loan in the amount of $110, 000 from American Home
Mortgage (“AHM”) to finance the purchase.
Id. The loan was secured by a deed of trust recorded
on April 14, 2006. Id.; (ECF No. 1-3). The deed of
trust lists AHM 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. 1-3). The covenants, conditions, and
restrictions (“CC&R”) governing the property
contained a mortgage protection clause. (ECF No. 1 at 7-8).
25, 2012, Nevada Association Services (“NAS”),
acting on behalf of the HOA, recorded a notice of delinquent
assessment lien, stating an amount due of $1, 867.50. (ECF
No. 1-5). On September 13, 2012, NAS, 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, 009.50. (ECF No. 1-6).
October 17, 2012, Ocwen Loan Servicing (“Ocwen”)
contacted NAS and asked for a payoff ledger. (ECF No. 31). In
response, NAS stated it could not “give a payoff
without the borrower's authorization.” Id.
“As Stodal was in default under the note and deed of
trust, Ocwen was unable to obtain his consent.”
Id. Plaintiff states that “Ocwen was ready,
willing and able to satisfy the superpriority amount of the
lien had NAS provided the correct pay off amount.”
Id. However, plaintiff does not allege that it or
any of plaintiff's predecessors in interest tendered any
amount to NAS or the HOA.
January 24, 2013, NAS recorded a notice of foreclosure sale,
stating an amount due of $4, 648.17 and an anticipated sale
date of February 15, 2013. (ECF No. 1-7).
March 15, 2013, the HOA foreclosed on the property. (ECF No.
1). Williston purchased the property at the sale for $5, 410.
(ECF No. 1-8).
January 15, 2014, MERS, as nominee for AHM, assigned its
interest in the deed of trust to plaintiff. (ECF No. 1-4).
February 2, 2017, plaintiff filed the underlying complaint,
alleging (1) quiet title pursuant to 28 U.S.C. § 2201,
NRS 30.010 et seq., and NRS 40.010; (2) declaratory
relief under the Fifth and Fourteenth Amendment's due
process clauses; (3) quiet title under the Fifth and
Fourteenth Amendment's due process clauses; (4)
preliminary and permanent injunction; and (5) unjust
enrichment. (ECF No. 1).
March 20, 2017, Williston filed its answer to plaintiff's
complaint and counterclaim for quiet title/declaratory relief
pursuant to NRS 40.010 et seq. and NRS 116.3116
et seq. (ECF No. 13).
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