United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
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.
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.
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).
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).
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).
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).
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).
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).
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 is merely colorable or is not
significantly probative, summary judgment may be granted.
Id. at 249-50