United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
before the Court is the Motion for Partial Summary Judgment,
(ECF No. 48), filed by Bank of America, N.A.
(“Plaintiff”). Defendant Pueblo at Sante Fe
Condominium Association, Inc. (“HOA”) and
Defendant Keynote Properties, LLC (“Keynote”)
(collectively “Defendants”) filed Responses, (ECF
Nos. 57, 58). Plaintiff then filed a Reply, (ECF No. 59).
pending before the Court is Plaintiff's Supplemental
Motion for Partial Summary Judgment, (ECF No. 60). HOA and
Keynote filed Responses, (ECF Nos. 61, 62), and Plaintiff
filed a Reply, (ECF No. 65).
reasons discussed below, the Court GRANTS
Plaintiff's Motion for Partial Summary Judgment, (ECF No.
48), and GRANTS Plaintiff's Supplemental
Motion for Partial Summary Judgment, (ECF No.
case arises from the non-judicial foreclosure on real
property located at 6909 Squaw Mountain Drive, Unit 204, Las
Vegas, Nevada 89130 (the “Property”).
(See Deed of Trust, Ex. 1 to Pl.'s Mot. Summ. J.
(“MSJ”), ECF No. 48-1). In 2006, Jennie Dubinsky
(“Borrower”) purchased the Property by way of a
loan in the amount of $120, 000.00, secured by a deed of
trust (the “DOT”). (Id.). American
Sterling Bank served as the original lender for the DOT, and
Mortgage Electronic Registration System, Inc.
(“MERS”) was the nominal beneficiary on behalf of
that Bank. (DOT, Ex. 1 to Pl.'s MSJ).
Mae purchased the DOT in August 2006. (Decl. John Curcio
¶ 5, Ex. 2 to Pl.'s MSJ, ECF No. 48-1); (Loan
Transaction History, Ex. A to Decl. John Curcio, ECF No.
48-1). On January 23, 2013, Plaintiff received an assignment
of the DOT from the original lender, American Sterling Bank.
(Assignment of DOT, Ex. 3 to Pl.'s MSJ, ECF No. 48-1)
(showing a recorded assignment on January 23, 2013).
Borrower's failure to stay current on payment
obligations, Alessi and Koenig, LLC (“A&K”),
on behalf of HOA, initiated foreclosure proceedings by
recording a notice of delinquent assessment lien and a
subsequent notice of default and election to sell.
(See Notice of Delinquent Assessment Lien, Ex. 5 to
Pl.'s MSJ, ECF No. 48-1); (Notice of Default, Ex. 6 to
Pl.'s MSJ, ECF No. 48-1).
October 23, 2012, the law firm Miles, Bauer, Bergstrom &
Winters LLP (“Miles Bauer”), on Plaintiff's
behalf, sent a letter to A&K requesting a ledger with the
amount of HOA's superpriority lien. (See Request
for Accounting at 6-7, Ex. 1 to Miles Aff., ECF No. 60-1).
A&K accordingly responded with a ledger. (See
Statement of Account, Ex. 2 to Miles Aff., ECF No. 60-1).
Miles Bauer, on behalf of Plaintiff, subsequently delivered a
check to A&K for $1, 720.60, based on the provided
ledger, purportedly representing nine months' worth of
HOA assessments. (See Tender Letter, Ex. 3 to Miles
Aff., ECF No. 60-1).
A&K proceeded with the foreclosure by recording a notice
of foreclosure sale and foreclosing on the Property.
(See Notice of Trustee's Sale, Ex. 7 to
Pl.'s MSJ, ECF No. 48-1). On June 13, 2013, Keynote
recorded a foreclosure deed, stating it purchased the
Property for $9, 300. (Foreclosure Deed, Ex. 8 to Pl.'s
MSJ, ECF No. 48-1).
filed its Complaint on May 27, 2016, asserting the following
causes of action arising from the Property's foreclosure
sale: (1) declaratory relief pursuant to 28 U.S.C. §
2201; (2) violation of the Housing and Economy Recovery Act
of 2008; (3) quiet title; and (4) breach of Nevada Revised
Statute 116.1113; (5) wrongful foreclosure; and (6)
injunctive relief. (See Compl. ¶¶ 7-96,
ECF No. 1).
Federal Rules of Civil Procedure provide for summary
adjudication 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).
Material facts are those that may affect the outcome of the
case. 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. Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party's
favor.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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
determining summary judgment, a court applies a
burden-shifting analysis. “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). 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.
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. 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. 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
that are unsupported by factual data. 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.
Celotex Corp., 477 U.S. at 324.
summary judgment, a court's function is not to weigh the
evidence and determine the truth; it is to determine whether
there is a genuine issue for trial. 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 ...