United States District Court, D. Nevada
C. JONES United States District Judge
case arises out of a homeowners' association foreclosure
sale. Pending before the Court are two motions for
FACTS AND PROCEDURAL HISTORY
Irma Mendez, a California resident, purchased an investment
property in North Las Vegas, Nevada (“the
Property”) for $315, 000, giving the lender a
promissory note for $252, 792 and an attendant deed of trust
(“the DOT”) against the Property. Alessi &
Koenig, LLC (“A&K”), on behalf of Fiesta Del
Notre Homeowners Association (“the HOA”), sold
the Property to Absolute Business Solutions, Inc.
(“ABS”) under Nevada Revised Statutes
(“NRS”) Chapter 116.
sued A&K, the HOA, Complete Association Management Co.,
LLC (“CAMCO”), ABS, and Amir Hujjuttallah in
diversity in this Court in pro se on eight causes of
action: (1) wrongful foreclosure; (2) violations of
constitutional rights; (3) Nevada Unfair Trade Practices Act
(“NUTPA”); (4) Fair Debt Collection Practices Act
(“FDCPA”); (5) Fraud; (6) Unjust Enrichment; (7)
Racketeering; and (8) Breach of Contract and Fiduciary
Duties. CAMCO moved to dismiss for failure to state a claim,
and the HOA and A&K joined the motion. ABS and
Hujjuttallah separately moved to dismiss under Brillhart
v. Excess Insurance Co., 316 U.S. 491 (1942), and the
HOA joined the motion. The Court denied the second motion but
granted the first motion in part, with leave to amend in
part. Specifically, the Court dismissed the claims for unjust
enrichment, racketeering, breach of fiduciary duty, and the
claims under NRS sections 598.0915(1) and (15), 42 U.S.C.
§ 1983, and 15 U.S.C. §§ 1692f(6), 1692g(c),
1692i(b), and 1692k, without leave to amend. The Court
dismissed the claim for fraud and the claims under 15 U.S.C.
§§ 1692d, 1692e, and 1692j(a), with leave to amend.
The Court refused to dismiss the claims for wrongful
foreclosure and breach of contract and the claims under NRS
section 598A.060(1)(12) and 15 U.S.C. § 1692f(1).
filed the First Amended Complaint (“FAC”),
listing five causes of action: (1) wrongful foreclosure; (2)
NUTPA; (3) FDCPA; (4) Fraud; and (5) Breach of Contract.
CAMCO filed two motions to dismiss the FAC, and the HOA
joined the first motion. A&K filed a separate motion to
dismiss, which the HOA joined. The Court denied the motions
as against the wrongful foreclosure claim, based on
Plaintiff's allegations that Defendants wrongfully
rejected her attempt to redeem the default before the
foreclosure sale. The Court denied the motions as against the
claim of bid rigging under NRS section 598A.060(1)(a)(12),
based on Plaintiff's allegation that the foreclosure sale
occurred in the private offices of the auctioneer for
approximately 10% of the Property's fair market value.
Plaintiff also alleged violations of 15 U.S.C. §§
1692d, 1692f, and 1692g. The Court dismissed the claims under
§§ 1692d and 1692g and dismissed the § 1692f
claim as against CAMCO but not as against the HOA or A&K.
The Court dismissed the fraud claim. Finally, the Court
permitted the breach of contract claim to proceed as against
the HOA, based on Plaintiff's allegations that the HOA
failed to obtain the consent of two thirds of unit owners in
the HOA before pursuing foreclosure as required by the
Covenants, Conditions and Restrictions (“the
Court granted a motion to amend the FAC in part, and
Plaintiff filed the Second Amended Complaint
(“SAC”), listing four causes of action: (1)
wrongful foreclosure (the HOA, CAMCO, A&K, Absolute
Collection Services, LLC (“ACS”)); (2) NUTPA bid
rigging (A&K, Kendrall Williams, ABS, Hujjutallah); (3)
FDCPA § 1692f (the HOA, A&K); and (4) Breach of
Contract (the HOA). Plaintiff moved for offensive summary
judgment on the FDCPA claim, and the HOA moved for defensive
summary judgment against that claim. Three groups of
Defendants and “indispensable parties” (as named
in the SAC) separately moved to dismiss. The Court dismissed
Williams, the Jimijack Irrevocable Trust, Joel and Sandra
Stokes, and ACS from the action and granted summary judgment
to the HOA against the FDCPA claim.
point, the remaining claims were: (1) wrongful foreclosure
(the HOA, CAMCO, A&K); (2) NUTPA bid rigging (A&K,
ABS, Hujjutallah); (3) FDCPA § 1692f (A&K); and (4)
Breach of Contract (the HOA). A&K filed for bankruptcy
protection. The HOA and CAMCO moved for defensive summary
judgment against the wrongful foreclosure and breach of
contract claims. Plaintiff filed a counter motion for
offensive summary judgment. The Court granted Defendants'
motion and denied Plaintiff's, noting that the bid
rigging claim under NRS section 598A.060(1)(a)(12) against
ABS and Hujjutallah, as well as the stayed claims against
A&K remained for trial. The HOA and CAMCO have now
separately moved for attorney's fees.
appear to base their entitlement to fee shifting on 28 U.S.C.
§ 1927. The only controlling authority they have cited
is Ry. Express, Inc. v. Piper, 447 U.S. 752 (1980),
which concerned costs for vexatious multiplication of
proceedings under § 1927 and discovery sanctions under
Rule 37. Section 1927 applies to pro se litigants.
Wages v. IRS, 915 F.2d 1230, 1235-36 (9th Cir.
Court permitted some claims to proceed to summary judgment
against Movants. And the wrongful foreclosure claim against
Movants may have survived summary judgment if Plaintiff had
managed to marshal some evidence to support it. In opposition
to summary judgment, Plaintiff adduced deposition excerpts
that she claimed indicated she mailed payments to CAMCO
within a time frame such that her account should not have
been sent to collections but that CAMCO (as the HOA's
agent) rejected the payments. (See Opp'n 4-5,
ECF No. 188; Dep. 84-85, ECF No. 188-1, at 11; Dep. 35-37,
ECF No. 188-1, at 13). If admissible, that evidence might
have shown a wrongful rejection of tender, but the Court
could not consider the unauthenticated evidence. See Orr
v. Bank of Am., NT & SA, 285 F.3d 764, 774 (9th Cir.
these circumstances, the Court cannot say the claims against
Movants were altogether frivolous so as to support fee
shifting under § 1927. Nor were the claims vexatious.
Movants note there are three cases pending in this Court
related to the Property. But Plaintiff brought only two of
the three cases. She is a defendant in the third case.
Moreover, Movants are only Defendants in the present,
first-filed case and cannot claim to be the victims of
vexatious litigation by Plaintiff where Plaintiff has only
filed claims against them in one action and where at least
one of those claims nearly survived summary judgment.
HEREBY ORDERED that the Motions for Attorney's Fees (ECF