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Bank of America, N.A. v. Berberich

United States District Court, D. Nevada

March 29, 2019

BANK OF AMERICA, N.A., Plaintiff
KENNETH BERBERICH, et al., Defendants.


          Gloria M. Navarro, Chief Judge United States District Court

         Pending before the Court is Bank of America, N.A.'s (“Plaintiff's”) Motion for Partial Summary Judgment, (ECF No. 60). Defendant Sunrise Highlands Community Association (“Sunrise”) and Defendant Kenneth Berberich (“Berberich”) filed Responses, (ECF Nos. 67, 74), and Plaintiff filed Replies, (ECF Nos. 72, 82). Further, Plaintiff filed a Supplemental Brief, (ECF No. 91), in support of its Motion for Partial Summary Judgment; and Berberich filed a Responsive Supplemental Brief, (ECF No. 94).

         Also pending before the Court is Berberich's Motion for Summary Judgment, (ECF No. 62). Plaintiff filed a Response, (ECF No. 68), and Berberich filed a Reply, (ECF No. 78).[1]

         For the reasons discussed below, the Court GRANTS in part and DENIES in part Plaintiff's Motion for Partial Summary Judgment, (ECF No. 60). Additionally, the Court DENIES Berberich's Motion for Summary Judgment, (ECF No. 62).

         I. BACKGROUND

         This case arises from the non-judicial foreclosure on real property located at 2675 Upland Bluff Drive, Las Vegas, Nevada 89142 (the “Property”). (See Deed of Trust, Ex. A to Pl.'s Mot. Summ. J. (“MSJ”), ECF No. 60-1). In 2007, Marcee and Adam Thomson (“Borrowers”) purchased the Property with a loan of $297, 173.00, secured by a deed of trust (the “DOT”). (Id.). Plaintiff gained beneficial interest in the DOT through an assignment recorded on October 6, 2011. (See Assignment, Ex. D. to Pl.'s MSJ, ECF No. 60-4).

         Upon Borrowers' failure to stay current on their payment obligations, Alessi & Koenig, LLC (“A&K”), on behalf of Sunrise, 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 MSJ, ECF No. 60-5); (Notice of Default, Ex. F to Pl.'s MSJ, ECF No. 60-6).

         On September 9, 2011, the law firm Miles, Bauer, Bergstrom & Winters LLP (“Miles Bauer”), on behalf of Plaintiff, sent a letter to A&K requesting a ledger that identifies the amount of Sunrise's superpriority lien on the Property, which A&K provided. (See Request for Accounting at 6-9, Ex. 1 to Miles Aff., ECF No. 60-8); (see Statement of Account, Ex. 3 to Miles Aff., ECF No. 60-8). Miles Bauer, on behalf of Plaintiff, subsequently delivered a check to A&K for $288.00, based on the provided ledger, as a payment for nine months' assessments. (See Tender Letter, Ex. 5 to Miles Aff., ECF No. 60-8).

         Notwithstanding the alleged tender, A&K proceeded with the foreclosure by recording a notice of foreclosure sale and subsequently foreclosing on the Property. (See Notice of Trustee's Sale, Ex. G to Pl.'s MSJ, ECF No. 60-7). On July 19, 2011, Berberich recorded a foreclosure deed, stating that he purchased the Property for $4, 297.00. (Foreclosure Deed, Ex. I to Pl.'s MSJ, ECF No. 60-9).

         Plaintiff filed its Complaint on February 11, 2016, asserting several causes of action arising from the foreclosure and subsequent sale of the Property: (1) quiet title; (2) breach of NRS 116.1113; (3) wrongful foreclosure; and (4) injunctive relief. (See Compl. ¶¶ 29-82).


         The 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 (1986).

         In 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).

         If the 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.

         At 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 is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50

         III. ...

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