United States District Court, D. Nevada
before the court is plaintiff Bank of America, N.A.'s
(“BOA”) motion for summary judgment. (ECF No.
37). Defendants Ridgeview Homeowners Association, (“the
HOA”) and A Scimitar LLC (“Scimitar”) filed
responses (ECF Nos. 44, 46), to which plaintiff replied (ECF
before the court is defendant HOA's motion for summary
judgment. (ECF No. 36). Plaintiff filed a response (ECF No.
45), to which defendant replied (ECF No. 51).
before the court is defendant Scimitar's motion for
summary judgment. (ECF No. 38). Plaintiff filed a response
(ECF No. 45), to which defendant replied (ECF No. 53).
case involves a dispute over real property located at 1927
Scimitar Drive #32, Henderson, Nevada, 89011 (the
“property”). . . .
Plaintiff's interest in the property
23, 2006, Sonya and Alex Diaz (“the borrowers”)
obtained a loan in the amount of $140, 000 from plaintiff to
purchase the property. (ECF No. 1). The loan was secured by a
deed of trust recorded on June 28, 2006. Id.
March 23, 2011, the deed of trust was assigned to BAC Home
Loans Servicing, LP, via an assignment of deed of trust
(recorded on March 25, 2011). Id.; (ECF No. 37-3).
On December 5, 2014, BAC Home Loans Servicing, LP, assigned
the deed of trust to Ventures Trust 2012-I-H-R by MCM Capital
Partners LLC (“MCM”) (recorded on February 18,
2015). (ECF No. 37-4). On May 23, 2016, MCM assigned the deed
of trust to plaintiff. (ECF No. 37-5).
Defendants' interest in the property
12, 2011, Nevada Association Services (“NAS”),
acting on behalf of the HOA, recorded a notice of delinquent
assessment lien, stating an amount due of $1, 753.80.
Id. On August 26, 2011, NAS recorded a notice of
default and election to sell to satisfy the delinquent
assessment lien, stating an amount due of $2, 883.60.
October 28, 2011, plaintiff requested a ledger from the HOA,
through NAS, that identified the super-priority amount owed
to the HOA. Id. In the request, plaintiff stated
“[Nine months of assessments for common expenses
incurred before the date of your notice of delinquent
assessment] is the amount [BOA] should be required to
rightfully pay to fully discharge its obligations to the HOA
per NRS 116.3102 and my client hereby offers to pay that sum
upon presentation of adequate proof of the same by the
HOA.” (ECF No. 37-10 at 14). Neither the HOA nor NAS
provided a ledger. Id. Based on a ledger from a
different property under the same HOA, plaintiff calculated
the alleged superpriority portion of the lien to be $1, 350.
Id. On December 1, 2011, plaintiff tendered $1, 350
to the HOA through NAS. Id. The HOA refused the
August 6, 2012, 2012, NAS recorded a notice of trustee's
sale, stating an amount due of $5, 887.52. Id. On
March 19, 2014, NAS recorded a second notice of trustee's
sale, stating an amount due of $9, 839.24 and an anticipated
sale date of April 11, 2014. Id.
29, 2014, the HOA foreclosed on the property. (ECF No. 1).
Scimitar purchased the property at the foreclosure sale for
$11, 100. Id. A foreclosure deed in favor of
Scimitar was recorded on July 29, 2014. Id.
September 20, 2016, BOA filed the underlying complaint,
alleging four causes of action: quiet title against all
defendants; breach of NRS 116.1113 against the HOA and NAS;
wrongful foreclosure against the HOA and NAS; and injunctive
relief against Scimitar. Id. On October 14, 2016,
Scimitar filed counterclaims against plaintiff for quiet
title and declaratory relief. (ECF No. 12).
instant motions, plaintiff, defendant HOA, and defendant
Scimitar all move for summary judgment in their favor. (ECF
Nos. 36, 37, 38).
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, the court takes judicial notice of the
following recorded documents: the first deed of trust (ECF
No. 37-2); the assignments of the deed of trust; (ECF Nos.
37-3, 37-4, 37-5); the notice of delinquent assessment (ECF
No. 37-6); the notice of default and election to sell (ECF
No. 37-7); the notices of trustee's sale (ECF Nos. 37-8,
37-9); and the trustee's deed upon sale (ECF No. 37-11).
See, e.g., United States v. Corinthian
Colls., 655 F.3d 984, 998-99 (9th Cir. 2011) (holding
that a court may take judicial notice of public ...