United States District Court, D. Nevada
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE
this Court comes Defendant The Bank of New York Mellon
(“Defendant”)'s Motion for Summary Judgment
(ECF No. 28) and Plaintiffs Cleveland Brown and Sandra Brown
(collectively, “Plaintiffs”)' Motion for
Summary Judgment (ECF No. 30). For the reasons discussed
below, the Court denies both Motions.
Court incorporates the procedural and factual background set
forth on the record during its August 7, 2017 hearing on the
matter, and briefly adds the following. During the prior
hearing, the Court opened discovery for a period of sixty
days, and ordered dispositive motions to be filed by October
23, 2017. (ECF No. 24). The parties were ordered to brief the
narrow issue of whether Defendant provided proper notice
pursuant to Nevada Revised Statute (“NRS”) §
107.080, for the purpose of the Court ruling on
Plaintiffs' request for declaratory relief. The parties
received extensions of time and filed their Motions for
Summary Judgment on November 2, 2017 and November 3, 2017.
(ECF Nos. 28, 30). Both parties filed Responses on November
17, 2017. (ECF Nos. 31, 32). On November 27, 2017, the
parties each filed Replies. (ECF Nos. 33, 34). The Court held
a hearing on the instant Motions on July 16, 2018, and took
the matter under submission. This Order now follows.
judgment is appropriate 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 judgment as a matter of law.” Fed.R.Civ.P.
56(a); accord Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). When considering the propriety of summary
judgment, the court views all facts and draws all inferences
in the light most favorable to the nonmoving party.
Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th
Cir. 2014). If the movant has carried its burden, the
non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material facts . .
. . Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Scott v.
Harris, 550 U.S. 372, 380 (2007) (alteration in
original) (quotation marks omitted). It is improper for the
Court to resolve genuine factual disputes or make credibility
determinations at the summary judgment stage. Zetwick v.
Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017)
Court finds the following facts to be undisputed. Plaintiffs
are the current owners of record of real property commonly
known as 5070 Rustic Ridge Dr., Las Vegas, NV 89148 and more
particularly described as follows: SPANISH HILLS EST UNIT 4
AMD, PLAT BOOK 109 PAGE 35, LOT 3 BLOCK 8, APN:
163-29-514-001 (“the Subject Property”). On or
about August 1, 2005, Plaintiffs made, executed and delivered
to non-party Sahara Mortgage Corporation
(“Sahara”) a certain Deed of Trust dated August
1, 2005 (“the Deed of Trust”) in connection with
a mortgage loan on the Subject Property for the principal
amount of $1, 287, 000 (“the Loan”). The Deed of
Trust was recorded in book number 20050817 as instrument
number 0001134 in the Official Records of the Clark County
Recorder's Office (the “Official Records”) on
August 17, 2005.
about May 1, 2008, a default occurred under the terms of the
Loan, in that the Plaintiffs failed to make the regular
monthly installment payments due on that date and all
subsequent payment due dates. Defendant recorded the
assignment of the underlying note and Deed of Trust on the
Subject Property on or about April 25, 2011.
about May 20, 2013, non-party Bank of America sent a letter to
Plaintiffs stating that the underlying note was in default.
While the letter stated the principal obligation and interest
rate and late fees, it made no mention of the accrued
interest on the note. On or about September 1, 2015,
non-party Bayview Loan Servicing (“Bayview”), on
behalf of Defendant, sent Plaintiffs a correspondence stating
that the delinquency on the note would be foreclosed. While
the letter stated the principal obligation and interest rate
and late charges, it made no mention of the accrued interest
on the note.
about December 14, 2015, Defendant recorded a Substitution of
Trustee listing non-party Sables LLC (“Sables”)
as the Trustee of the note. On or about February 23, 2016,
Sables recorded a Breach and Election to Sell the Subject
Property. Pursuant to the Breach and Election to Sell, the
amount of arrears on the note was eight hundred sixteen
thousand four hundred twenty-five dollars and eighty-eight
cents ($816, 425.88). The Breach and Election to Sell does
not state what amount of principal remained nor the amount of
accrued interest remaining on the underlying note. The
Affidavit of Authority attached to the Breach and Election to
Sell states under penalty of perjury in subparagraph five
that Plaintiffs had received a written statement showing
“(iv) the amount of accrued interest and late
charges.” In February 2016, non-party Bayview, on
behalf of Defendant, sent Plaintiffs an invoice with account
information for the underlying note. The letter states the
monthly interest charges on the note is $4, 769.00 and the
outstanding principal is $1, 359, 480.74.
also has in its possession a Notice of Default and Intent to
Accelerate letter dated October 15, 2014 (“October 15,
2014 letter”), purportedly from Bayview. The letter has
a Certified Mail receipt attached; ...