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Bank of America, N.A. v. Ridgeview Homeowners Association, Inc.

United States District Court, D. Nevada

May 8, 2018

BANK OF AMERCA, N.A., Plaintiffs,
v.
RIDGEVIEW HOMEOWNERS ASSOCIATION, INC., et al., Defendants.

          ORDER

         Presently 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 No. 52).

         Also 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).

         Also 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).

         I. Facts

         This case involves a dispute over real property located at 1927 Scimitar Drive #32, Henderson, Nevada, 89011 (the “property”). . . .

         a. Plaintiff's interest in the property

         On June 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.[1] Id.

         On 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).

         b. Defendants' interest in the property

         On July 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. Id.

         On 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 payment. Id.

         On 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.

         On July 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.

         c. Procedural background

         On 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).

         In the instant motions, plaintiff, defendant HOA, and defendant Scimitar all move for summary judgment in their favor. (ECF Nos. 36, 37, 38).

         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 party is merely colorable or is not significantly probative, summary judgment may be granted. See Id. at 249-50.

         III. Discussion

         As an 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 ...


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