United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK as Trustee for the CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2005-J12 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-J12, Plaintiffs,
IMAGINATION NORTH LANDSCAPE MAINTENANCE ASSOCIATION; SFR INVESTMENTS POOL 1, LLC; and ALESSI & KOENIG, LLC, Defendants.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
dispute arises from the foreclosure sale of property to
satisfy a homeowners' association lien. Before the Court
are three motions: (1) Defendant SFR Investments Pool 1,
LLC's (“SFR”) motion for summary judgment
(ECF No. 117); (2) Plaintiff Bank of New York Mellon's
(“BONY”) motion for partial summary judgment (ECF
No. 118); and (3) SFR's motion for Rule 56(d)
relief (ECF No. 125). The Court has reviewed
Counter/Cross-Claimant Julie A. Christensen's joinder to
BONY's motion and reply (ECF Nos. 121,
132).The Court also has reviewed the responses
(ECF Nos. 122, 123, 124, 129) and replies (ECF Nos. 128, 130,
131) to the motions. The Court heard oral argument on these
motions on March 25, 2019. (ECF No. 135.) For the following
reasons, the Court denies BONY's motion for summary
judgment, grants SFR's motion for summary judgment, and
denies SFR's motion for Rule 56(d) relief as moot.
following facts are undisputed unless otherwise indicated.
purchased real property (“Property”) located
within Imagination North Landscape Maintenance Association
(“Imagination”) at 3136 Extravagant Avenue, North
Las Vegas, Nevada 89031 on July 18, 2005. (ECF No. 118-1 at
2-4, 16.) The Borrower financed the purchase with a $223, 992
loan (“Loan”) evidenced by a note
(“Note”) and secured by a first deed of trust
(“DOT”). (Id. at 2.) The DOT was
assigned to BONY in May 2011. (ECF No. 118-2 at
recorded the following notices through its agent Alessi &
Koenig, LLC (“Alessi”): (1) notice of delinquent
assessment on June 3, 2011 (ECF No. 118-3 at 2); (2) notice
of default and election to sell on August 29, 2011 (ECF No.
118-4 at 2); and (3) notice of trustee's sale on March
20, 2012 (ECF No. 118-5 at 2).
foreclosed on the Property and sold it to SFR in July 2012
(“HOA Sale”) for $3, 300. (ECF No. 118-11 at 2.)
asserts the following claims in the Complaint: (1) quiet
title/declaratory judgment against all Defendants; (2) breach
of NRS § 116.1113 against Imagination and Alessi; (3)
wrongful foreclosure against Imagination and Alessi; and (4)
injunctive relief against SFR. (ECF No. 1 at 6-12.)
filed a counterclaim and crossclaim for quiet
title/declaratory judgment and injunctive relief. (ECF No. 20
filed the following counterclaims and crossclaims: (1)
violation of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq., against Alessi and the
HOA; (2) wrongful foreclosure against Alessi and the HOA; (3)
violation of Nevada Unfair Trade Practices Act, NRS §
598A.060(1)(a)(12), against Alessi, the HOA, and SFR; (4)
false representation against Alessi, the HOA, and BONY; (5)
breach of contract against the HOA; (6) crimes against
property under NRS Ch. 205 against all Defendants; (7)
negligence against Alessi; the HOA; Bank of America, N.A.
(“BANA”); and BONY; (8) breach of
contract/fiduciary duty against BANA and BONY; (9) slander of
title/quiet title against Alessi, BONY, the HOA, and SFR; and
(10) intentional infliction of emotional distress against
Alessi and the HOA. (ECF No. 34 at 14-28.)
purpose of summary judgment is to avoid unnecessary trials
when there is no dispute as to the facts before the
court.” Nw. Motorcycle Ass'n v. U.S. Dep't
of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary
judgment is appropriate when the pleadings, the discovery and
disclosure materials on file, and any affidavits “show
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986).
An issue is “genuine” if there is a sufficient
evidentiary basis on which a reasonable fact-finder could
find for the nonmoving party and a dispute is
“material” if it could affect the outcome of the
suit under the governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986). Where reasonable
minds could differ on the material facts at issue, however,
summary judgment is not appropriate. See Id. at
250-51. “The amount of evidence necessary to raise a
genuine issue of material fact is enough ‘to require a
jury or judge to resolve the parties' differing versions
of the truth at trial.'” Aydin Corp. v. Loral
Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting
First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253,
288-89 (1968)). In evaluating a summary judgment motion, a
court views all facts and draws all inferences in the light
most favorable to the nonmoving party. Kaiser Cement
Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103
(9th Cir. 1986).
moving party bears the burden of showing that there are no
genuine issues of material fact. Zoslaw v. MCA Distrib.
Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the
moving party satisfies Rule 56's requirements, the burden
shifts to the party resisting the motion to “set forth
specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 256. The
nonmoving party “may not rely on denials in the
pleadings but must produce specific evidence, through
affidavits or admissible discovery material, to show that the
dispute exists, ” Bhan v. NME Hosps., Inc.,
929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Orr v. Bank of Am., 285
F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). “The mere existence of a scintilla of evidence
in support of the plaintiff's position will be
insufficient.” Anderson, 477 U.S. at 252.
“when parties submit cross-motions for summary
judgment, ‘[e]ach motion must be considered on its own
merits.'” Fair Hous. Council of Riverside Cty.,
Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.
2001) (citations omitted) (quoting William W. Schwarzer,
et al., The Analysis and Decision of Summary
Judgment Motions, 139 F.R.D. 441, 499 (Feb. 1992)). “In
fulfilling its duty to review each cross-motion separately,
the court must review the evidence submitted in support of
each cross-motion.” Id.
BONY'S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NO.
argues that it is entitled to summary judgment because (1)
Imagination's lien lacked priority over the DOT (ECF No.
118 at 6-7); (2) Christensen discharged any superpriority
lien when she tendered the superpriority amount (id.
at 7-8); (3) the state statute (NRS § 116.3116)
governing the HOA Sale is ...