United States District Court, D. Nevada
WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2007-5, ASSET-BACKED CERTIFICATES, SERIES 2007-5, Plaintiff,
ENTRUST EDUCATION TRUST/DEUK CHOI TRUSTEE et al., Defendants.
C. JONES UNITED STATES DISTRICT JUDGE.
case arises from a residential foreclosure by the Meadowview
Terrace Townhouse Association (“the HOA”) for
failure to pay HOA assessments. Now pending before the Court
are competing Motions for Summary Judgment. (ECF Nos. 30,
FACTS AND PROCEDURAL BACKGROUND
February 1998, Deanna Milton purchased the subject property
located at 2605 Starks Way in Reno, Nevada (“the
Property”). On January 24, 2007, a deed of trust signed
by Ms. Milton was recorded against the Property, securing a
loan in the amount of $140, 000, and identifying Option One
Mortgage Corporation (“Option One”) as
beneficiary (“the DOT”). (Deed of Trust, ECF No.
32-2.) On June 18, 2014, as a result of the homeowner's
failure to pay HOA fees, the HOA caused a lien for delinquent
assessments to be recorded against the Property.
Subsequently, a notice of default and election to sell
(“NOD”) was recorded on July 25, 2014, followed
by a notice of foreclosure sale (“NOS”) on
November 8, 2014. The NOS indicated the Property would be
sold at public auction on December 17, 2014. (Notice of Sale,
ECF No. 32-6.) Accordingly, a sale was conducted on that
date, and Defendant Entrust Education Trust/Deuk Choi Trustee
(“Entrust”) purchased the Property for $51, 100.
(Foreclosure Deed, ECF No. 32-7.) Approximately two years
later, in November 2016, Sand Canyon Corporation-successor
entity to Option One-assigned the DOT to Plaintiff Wells
Fargo. (Assignment, ECF No. 32-3.)
December 28, 2016, Wells Fargo filed this action, asserting
claims against Entrust and the HOA for (1) quiet title and
declaratory relief, (2) preliminary and permanent injunction,
(3) unjust enrichment, (4) statutorily defective foreclosure,
(5) negligence, and (6) negligence per se. The Complaint is
aimed at establishing the continued validity of Wells
Fargo's DOT following the HOA's foreclosure sale. On
May 26, 2017, Entrust answered the Complaint and asserted a
counterclaim for quiet title and declaratory judgment.
Entrust also asserted cross-claims against the HOA for (1)
unjust enrichment, (2) equitable mortgage, and (3) indemnity.
On May 30, 2017, the HOA filed a third-party complaint
against The Clarkson Law Group, P.C., its non-judicial
foreclosure agent, but then voluntarily dismissed the
complaint approximately four months later. (Notice of
Voluntary Dismissal, ECF No. 27.)
Entrust moves for summary judgment on its quiet title
counterclaim against Wells Fargo. (Def.'s Mot. Summ. J.,
ECF No. 30.) Wells Fargo also moves for summary judgment
against Entrust. (Pl.'s Mot. Summ. J., ECF No. 31.) Wells
Fargo argues that the Ninth Circuit's ruling in
Bourne Valley Court Tr. v. Wells Fargo Bank, NA, 832
F.3d 1154 (9th Cir. 2016), cert. denied, 137 S.Ct.
2296, 198 L.Ed.2d 726 (2017), entitles it to a declaration
that the HOA's foreclosure sale did not extinguish the
DOT. If the Court grants this relief, then Wells Fargo
asserts “the sole remaining claim in this case by Wells
Fargo would [be] the claim for unjust enrichment, ” and
that it will “voluntarily dismiss that claim without
prejudice.” (Pl.'s Mot. Summ. J. 7-8.)
must grant summary judgment when “the movant shows 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). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. 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).
determining summary judgment, a court uses a burden-shifting
scheme. 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.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In 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 nonmoving 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.
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 (1970). If the moving party meets
its initial burden, the burden then shifts to the opposing
party to establish a genuine issue of material fact. 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
unsupported by facts. 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 Fed. R. Civ. P.
56(e); Celotex Corp., 477 U.S. at 324.
summary judgment stage, 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, 477 U.S. at 249. 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. Notably, facts are only viewed in
the light most favorable to the nonmoving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even where
the underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, “a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”
Quiet Title and Declaratory Relief
Court has ruled that because Bourne Valley struck
down NRS Chapter 116's “opt-in” notice scheme
as facially unconstitutional, actual or reasonable notice is
inapposite. See, e.g., Bank of N.Y. Mellon v.
Ravenstar Invs., LLC, No. 3:17-cv-116, 2017 WL 2588088,
at *3-4 (D. Nev. June 14, 2017) (Jones, ...