United States District Court, D. Nevada
CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF ARLP TRUST 3, Plaintiff(s),
RED LIZARD PRODUCTIONS, LLC, Defendant(s).
before the court is defendant Treasures Landscape Maintenance
Association's (the “HOA”) motion to dismiss.
(ECF No. 23). Plaintiff Christina Trust, a division of
Wilmington Savings Fund Society, FSB (“Christina
Trust”) filed a response (ECF No. 25), to which the HOA
replied (ECF No. 26).
before the court is the HOA's motion to dismiss
defendants Red Lizard Productions, LLC (“Red
Lizard”) and RLP-Shasta Daisy, LLC's
(“RLP-Shasta”) crossclaims. (ECF No. 41).
Defendants Red Lizard and RLP-Shasta filed a response (ECF
No. 42), to which the HOA replied (ECF No. 43).
before the court is plaintiff's first motion for summary
judgment. (ECF No. 45). The HOA filed a response (ECF No.
48), as did Red Lizard and RLP-Shasta (ECF No. 52).
Thereafter, plaintiff filed a reply. (ECF No. 56).
before the court is the HOA's motion for summary judgment
against plaintiff. (ECF No. 57). Plaintiff filed a response,
(ECF No. 64), to which the HOA replied (ECF No. 66).
before the court is the HOA's motion for summary judgment
against defendant Red Lizard. (ECF No. 58). Red Lizard has
not filed a response, and the time for doing so has since
before the court is plaintiff's second motion for summary
judgment. (ECF No. 59). The HOA filed a response (ECF No.
63), to which plaintiff replied (ECF No. 65).
case involves a dispute over real property located at 5236
Shasta Daisy Street, North Las Vegas, Nevada, 89031 (the
Plaintiff's interest in the property
14, 2007, Miguel A. Chavez purchased the property. (ECF No.
12). On the same day, Chavez executed and recorded a deed of
trust identifying Countrywide Home Loans, Inc. as the lender,
ReconTrust Company, N.A. as the trustee, and Mortgage
Electronic Registration Systems, Inc. (“MERS”),
as nomine for lender and lenders successors and assigns.
Id. The deed of trust secured a loan in the amount
of $247, 500.00. Id On January 25, 2010, a corporate
assignment of deed of trust was recorded, whereby MERS
assigned all beneficial interest in the loan to BAC Home
Loans Servicing, LP (“BAC Home Loans”) f/k/a
Countrywide Home Loan Servicing, LP. Id. On June 3,
2014, an assignment of deed of trust was recorded, whereby
Bank of America, N.A. (“BANA”), successor by
merger to BAC Home Loans, assigned all beneficial interest in
the deed of trust to plaintiff in its individual
Defendants' interest in the property
November 26, 2008, a notice of delinquent assessment lien was
recorded against the property by Nevada Association Services,
Inc. (“NAS”), as agent for the HOA. Id.
On January 22, 2009, a notice of default and election to sell
under homeowners' association lien was recorded against
the property by NAS on behalf of the HOA. Id. On
March 12, 2010, a release of notice of delinquent lien was
recorded against the property by NAS, on behalf of the HOA,
in which the HOA gave notice that the first notice of lien
was satisfied and released. Id.
March 12, 2010, a notice of rescission was recorded against
the property by NAS, on behalf of the HOA, pursuant to which
the HOA rescinded the first notice of default. Id.
On November 18, 2010, a second notice of delinquent
assessment lien was recorded against the property by NAS, on
behalf of the HOA. Id.
13, 2011, Chavez filed for a voluntary petition under Chapter
7 of the Bankruptcy Code. Id. On August 16, 2011, a
discharge of debtor was entered in the bankruptcy action.
Id. Pursuant to this discharge, Chavez's
pre-petition debt to the HOA was discharged. Id. The
bankruptcy action was closed on November 22, 2011.
October 4, 2011, a second notice of default and election to
sell was recorded against the property by NAS, on behalf of
the HOA. Id. On May 15, 2012, a notice of
foreclosure sale was recorded against the property by NAS, on
behalf of the HOA. Id.
30, 2012, BANA sent NAS a letter requesting a payoff ledger.
(ECF No. 59). Neither the HOA nor NAS provided BANA with a
payoff ledger. Id.
December 14, 2012, a foreclosure sale took place whereby Red
Lizard acquired the property for $4, 758.00. (ECF No. 12).
September 25, 2015, plaintiff filed its original complaint in
this action. (ECF No. 1). On January 31, 2017, plaintiff
filed its first amended complaint. (ECF No. 12). The amended
complaint alleges the following claims: (1) quiet
title/declaratory relief pursuant to NRS 30.010 and NRS
40.010 against all defendants; (2) preliminary and permanent
injunction against all defendants; (3) unjust enrichment
against all defendants; (4) wrongful foreclosure against the
HOA and NAS; (5) negligence against the HOA and NAS; (6)
negligence per se against the HOA and NAS; (7) breach of
contract against the HOA and NAS; (8) misrepresentation
against the HOA and NAS; and (9) breach of the covenant of
good faith and fair dealing against the HOA and NAS.
15, 2017, RLP-Shasta and Red Lizard filed crossclaims against
Christiana Trust and counterclaims against the HOA, and NAS.
(ECF No. 35). The crossclaims and counterclaims allege the
following causes of action: (1) declaratory relief/quiet
title pursuant to NRS 30.010 and 116.3116 against Christiana
Trust, the HOA, and NAS; (2) preliminary and permanent
injunction from foreclosure action against Christiana Trust,
the HOA, and NAS; and (3) unjust enrichment against
Christiana Trust, the HOA, and NAS. (ECF No. 35).
court may dismiss a plaintiff's complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A properly pled
complaint must provide “[a] short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Although rule 8 does not
require detailed factual allegations, it does require more
than labels and conclusions. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Furthermore, a
formulaic recitation of the elements of a cause of action
will not suffice. Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009) (citation omitted). Rule 8 does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions. Id. at 678-79.
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Id. A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. When a complaint pleads facts that are
merely consistent with a defendant's liability, and shows
only a mere possibility of entitlement, the complaint does
not meet the requirements to show plausibility of entitlement
to relief. Id.
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering a
motion to dismiss. Id. First, the court must accept
as true all of the allegations contained in a complaint.
However, this requirement is inapplicable to legal
conclusions. Id. Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Id. at 678. Where the complaint does not
permit the court to infer more than the mere possibility of
misconduct, the complaint has “alleged - but not shown
- that the pleader is entitled to relief.” Id.
at 679. When the allegations in a complaint have not crossed
the line from conceivable to plausible, plaintiff's claim
must be dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court held:
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
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.
Motion to dismiss Christina Trust's first amended
complaint (ECF No. 23)
Quiet title/declaratory relief
argues that plaintiff's claim for quiet title/declaratory
relief should be dismissed because plaintiff's first
amended complaint fails to allege, and cannot allege, it paid
any debts owed on the property. (ECF No. 23).
response, plaintiff argues that it is not obligated to pay
all debts owed on the property. (ECF No. 25). The court
agrees. Under Nevada law, to assert a claim for quiet title
pursuant to NRS 40.010, plaintiff need only allege that it
has an interest in the real property that is adverse to
another. Plaintiff does not need to have paid all debts on
the property, as claimed by the HOA. See Nev. Rev.
Stat. 40.010; see also Lopez v. Bank of Am., N.A.,
no. 2:12-cv-00801-JCM, 2013 WL 1501449, at *3 (D. Nev. Apr.
the HOA argues that plaintiff cannot prove good title in
itself. (ECF No. 23). The HOA argues that because plaintiff
did not foreclose on the property plaintiff cannot hold title
to the property. Id. Plaintiff responds that it is
not asserting an ownership or possessory interest in the
property as the HOA contends, but instead asks the court to
hold that either its first deed of trust still encumbers the
property, or that the foreclosure sale was invalid. (ECF No.
purpose of a quiet title action is to establish one's
title against adverse claims to real property or any
interest therein.” Holmes v. Countrywide Home
Loans, 2:12-cv-02013-JCM-CWH, 2013 WL 1787182, at *3 (D.
Nev. Apr. 25, 2013) (emphasis added). A plaintiff does not
have to assert an ownership interest in property in order to
assert a claim for quiet title. See Id. ...