United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is the Motion for Partial Summary Judgment,
(ECF No. 58), filed by Bank of America, N.A.
(“Plaintiff”). Defendant SFR Investments Pool 1,
LLC (“SFR”) and Defendant Sunset Ridge Limited
Homeowners Association's (“HOA”) filed
Responses, (ECF Nos. 68, 69), and Plaintiff filed a Reply,
(ECF No. 71).
pending before the Court is SFR's Motion for Summary
Judgment, (ECF No. 59). Plaintiff filed a Response, (ECF No.
67), and SFR filed a Reply, (ECF No. 72).
pending before the Court is HOA's Motion for Summary
Judgment, (ECF No. 60). Plaintiff filed a Response, (ECF No.
66), and HOA filed a Reply, (ECF No. 70).
pending before the Court is Plaintiff's Motion for Leave
to File Supplemental Authority, (ECF No. 75). SFR filed a
Response, (ECF No. 76), and Plaintiff filed a Reply, (ECF No.
case arises from the non-judicial foreclosure on real
property located at 10108 Glen Aire Avenue, Las Vegas, Nevada
89148 (the “Property”). (See Compl.
¶ 5, ECF No. 1); (See Deed of Trust, Ex. A to
Pl.'s Mot. Partial Summ. J. (“MPSJ”), ECF No.
58-1). In 2008, Paul Wyklige and Lin Teng (collectively
“Borrowers”) purchased the Property by way of a
loan in the amount of $242, 705.00, secured by a deed of
trust (the “DOT”). (Id.). Countrywide KB
Home Loans, LLC served as the original lender for the DOT,
and Mortgage Electronic Registration System, Inc. was the
nominee-beneficiary on its behalf. (Id.). The DOT
was assigned to BAC Home Loans Servicing LP
(“BAC”) on May 18, 2011. (Assignment, Ex. C to
Pl.'s MPSJ, ECF No. 58-3). BAC subsequently merged with
Plaintiff. (Merger Certificate, Ex. D to Pl.'s MPSJ, ECF
the Borrowers' failure to stay current on payment
obligations, Assessment Management Services
(“AMS”) 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. E to
Pl.'s MPSJ, ECF No. 58-5); (Notice of Default, Ex. F to
Pl.'s MPSJ, ECF No. 58-6).
September 12, 2011, the law firm Miles, Bauer, Bergstrom
& Winters LLP (“Miles Bauer”), on
Plaintiff's behalf, sent a letter to HOA and AMS,
requesting a ledger with the amount of HOA's
superpriority lien. (See Request for Accounting, Ex.
1 to Miles Aff., ECF No. 58-8). AMS accordingly responded
with a ledger. (See Statement of Account, Ex. 2 to
Miles Aff., ECF No. 58-8). Miles Bauer, on behalf of
Plaintiff, subsequently delivered a check to AMS for $198.00,
based on the provided ledger, purportedly representing nine
months' worth of HOA assessments. (See Tender
Letter, Ex. 3 to Miles Aff., ECF No. 58-8).
AMS proceeded with the foreclosure by recording a notice of
foreclosure sale and foreclosing on the Property.
(See Notice of Foreclosure Sale, Ex. G to Pl.'s
MPSJ, ECF No. 58-7). On August 21, 2013, SFR recorded a
foreclosure deed, stating it purchased the Property for $18,
000. (Foreclosure Deed, Ex. I to Pl.'s MPSJ, ECF No.
April 8, 2016, Plaintiff filed its Complaint including the
following claims (1) quiet title and declaratory relief
against all defendants; (2) breach of NRS 116.1113 against
HOA and AMS; (3) wrongful foreclosure against HOA and AMS;
and (4) injunctive relief against SFR. (Compl. ¶¶
29-78). SFR subsequently filed crossclaims and counterclaims
against Plaintiff and Borrowers, respectively, for (1)
declaratory relief and quiet title, and (2) injunctive
relief. (See Answer ¶¶ 39-53, ECF No. 27).
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. 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.
“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.
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.
1987). In 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 Corp., 477 U.S. at 324. At 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, 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.
moves for summary judgment on its declaratory relief claim
against SFR asserting that the DOT survived because the
foreclosure was conducted pursuant to a facially
unconstitutional statute. (Pl.'s MPSJ 6:3-13:9, ECF No.
58). Plaintiff further argues, inter alia, that
summary judgment is warranted because Plaintiff properly
tendered the superpriority portion of HOA's lien prior to
the Property's foreclosure sale. (Id.
moves for summary judgment on its declaratory and injunctive
relief claims against Plaintiff and Borrowers, arguing that
Bourne Valley v. Wells Fargo Bank N.A., 832 F.3d
1154, (9th Cir. 2016), has been superseded and was never
dispositive. (SFR's MSJ 7:4-10:25, ECF No. 59). SFR
further contends that Plaintiff lacks standing to enforce ...