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HSBC Bank USA, N.A v. Williston Investment Group LLC

United States District Court, D. Nevada

May 7, 2018

HSBC BANK USA, N.A., et al., Plaintiff(s),
v.
WILLISTON INVESTMENT GROUP LLC, et al., Defendant(s).

          ORDER

         Presently 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).

         Also 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).

         Also 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).

         I. Facts

         This case involves a dispute over real property located at 1632 North Torrey Pines Drive #202, Las Vegas, Nevada, 89108 (the “property”). (ECF No. 1).

         On 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).

         On July 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).

         On 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.

         On 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).

         On 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).

         On January 15, 2014, MERS, as nominee for AHM, assigned its interest in the deed of trust to plaintiff. (ECF No. 1-4).

         On 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).

         On 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).

         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 ...


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