United States District Court, D. Nevada
before the court is defendant Terra Bella Owners Association,
Inc.'s (the “HOA”) motion to dismiss. (ECF
No. 35). Defendants/counter claimants/cross claimants
Silverstone, LLC (“Silverstone”) and GR
Investments, LLC (“GR Investments”) and
plaintiff/counter defendant Bank of New York Mellon
(“BNYM”) filed responses (ECF Nos. 37, 38), to
which the HOA replied (ECF Nos. 39, 43).
before the court is Silverstone and GR Investments'
motion for summary judgment. (ECF No. 40). The HOA joined
(ECF No. 41) and BNYM filed a response (ECF No. 45), to which
Silverstone and GR Investments replied (ECF No. 48).
before the court is BNYM's motion for summary judgment.
(ECF No. 42). Silverstone and GR Investments and the HOA
filed responses (ECF Nos. 44, 46), to which BNYM replied (ECF
case involves a dispute over real property located at 7509
Royal Crystal St., Las Vegas, Nevada 89149 (the
December 19, 2005, Arthur and Liwliwa Olivares (the
“borrowers”) obtained a loan in the amount of
$511, 600.00 from Loan Link Financial Services (“Loan
Link”) to purchase the property, which was secured by a
deed of trust recorded on January 4, 2006. (ECF No. 1). BNYM
holds the note and the first deed of trust. Id.
November 2, 2010, Hampton & Hampton, P.C. (“the
“HOA agent”), acting on behalf of the HOA,
recorded a notice of delinquent assessment lien on the
property. (ECF No. 1). On December 6, 2010, the HOA agent,
acting on behalf of the HOA, recorded a notice of default and
election to sell real property to satisfy delinquent
assessment lien against the property. Id.
3, 2012, the HOA agent, on behalf of the HOA, recorded a
notice of trustee's sale. (ECF No. 1). On August 17,
2012, the HOA agent, on behalf of the HOA, sold the property
at a foreclosure sale. Id. GR Investments purchased
the property for $8, 300.00. Id. On September 7,
2012, a trustee's deed upon sale was recorded.
alleges that the fair market value of the property on the
date of the foreclosure sale was at least $300, 000.00, and
likely higher. (ECF No. 1).
15, 2016, a quitclaim deed transferring all right, title,
interest, and claim of GR Investments in the property to
Silverstone was recorded. (ECF No. 40).
August 17, 2016, BNYM filed a complaint (ECF No. 1), which
was later amended on March 3, 2017 (ECF No. 15). In the
amended complaint, BNYM alleges four claims for relief: (1)
quiet title/declaratory relief against the HOA, GR
Investments, and Silverstone; (2) permanent and preliminary
injunction against GR Investments and Silverstone; (3) unjust
enrichment against the HOA, GR Investments, and Silverstone;
and (4) conversion against the HOA. Id.
March 17, 2016, GR Investments and Silverstone filed a
crossclaim against Mortgage Electronic Registration Systems,
Inc. (“MERS”), as nominee for Loan Link, and the
borrowers and a counterclaim against BNYM alleging a claim
for quiet title/declaratory relief. (ECF No. 17).
instant motions, the HOA moves to dismiss BNYM's amended
complaint (ECF No. 35), GR Investments and Silverstone move
for summary judgment against BNYM (ECF No. 40), and BNYM
moves for summary judgment on its claim for quiet
title/declaratory relief (ECF No. 42). The court will address
these motions as it sees fit.
Motion to Dismiss
may dismiss a 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);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
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. (internal quotation marks
omitted). 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 stated, in relevant
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.
The HOA's motion to ...