United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is the Motion for Summary Judgment, (ECF No.
47), filed by Bank of America, N.A.
(“Plaintiff”). Defendant Twilight Homeowners
Association (“HOA”) filed a Response, (ECF No.
65), and Plaintiff filed a Reply, (ECF No. 69).
pending before the Court is HOA's Motion for Summary
Judgment, (ECF No. 51). Plaintiff filed a Response, (ECF No.
64), and HOA filed a Reply, (ECF No. 68).
pending before the Court is Plaintiff's Motion to Amend
Default Judgment Against Defendant Daly Property Management
(“Daly”), (ECF No. 74).
reasons discussed below, Plaintiff's Motion for Summary
Judgment is DENIED, HOA's Motion for
Summary Judgment is GRANTED, and
Plaintiff's Motion to Amend Default Judgment Against Daly
case arises from the non-judicial foreclosure on real
property located at 5971 Crumbling Ridge Street, Henderson,
Nevada 89011 (the “Property”). (See Deed
of Trust, Ex. A to Pl.'s Mot. Summ. J.
(“MSJ”), ECF No. 47-1). On April 23, 2009, Thomas
Townsend and Barbara Townsend (collectively
“Borrowers”) purchased the Property by way of a
loan in the amount of $170, 291.00 secured by a deed of trust
(“DOT”). (Id.). The loan and the DOT
were insured by the Department of Housing and Urban
Development (“HUD”) via its Single Family
Mortgage Insurance program (“HUD's mortgage
insurance program”). (see Turner Decl., Ex. B
to Pl.'s MSJ, ECF No. 47-2). Plaintiff gained beneficial
interest in the DOT through an assignment recorded on
November 10, 2011. (See Assignment, Ex. C to
Pl.'s MSJ, ECF No. 47-3).
Borrowers' failure to stay current on their payment
obligations, Homeowner Association Services, Inc.
(“HAS”), on behalf of HOA, initiated foreclosure
proceedings by recording a notice of delinquent assessment
lien. (See Notice of Delinquent Assessment Lien, Ex.
D to Pl.'s MSJ, ECF No. 47-4). The notice of delinquent
assessment explicitly states in boldface type:
“*Includes Nuisance Abatement charge in the amount of
$200.00.” (Id.). The HOA subsequently recorded
two notices of default and election to sell. (March 2012
Notice of Default, Ex. E to Pl.'s MSJ, ECF No. 47-5);
(November 2012 Notice of Default, Ex. F to Pl.'s MSJ, ECF
April 12, 2012, the law firm Miles, Bauer, Bergstrom &
Winters LLP (“Miles Bauer”), on behalf of
Plaintiff, obtained a ledger from HOA, through its trustee
HAS, identifying the amount owed as $2, 518.21. (Pl.'s
Mot. Summ. J. (“MSJ”) 4:6-9, ECF No. 47);
(See Statement of Account, Ex. 1 to Miles Aff., ECF
No. 47-8). Based on the ledger, Plaintiff calculated what it
determined to be the lien amount, “the sum of nine
months of common assessments, ” and delivered a check
to HAS for $243.00. (See Tender Letter, Ex. 2 to
Miles Aff., ECF No. 47-8); (Confirmation of Receipt, Ex. 3 to
Miles Aff., ECF No. 47-8).
the alleged tender, HAS 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. 47-7). On
August 28, 2014, RBBE Real Estate Investments LLC
(“RBBE”) recorded a foreclosure deed stating it
purchased the Property for $17, 000.00. (Foreclosure Deed,
Ex. I to Pl.'s MSJ, ECF No. 47-9). RBBE subsequently
quitclaimed the Property to Defendant Daly on October 2,
2014. (Quitclaim Deed, Ex. K to Pl.'s MSJ, ECF No.
filed the instant Complaint on September 20, 2016, asserting
the following causes of action arising from the foreclosure
and subsequent sale of the Property: (1) quiet title against
Daly, RBBE,  HOA, and HAS; (2) breach of NRS 116.1113
against HOA and HAS; (3) wrongful foreclosure against HOA and
HAS; and (4) injunctive relief against Daly. (See
Compl. ¶¶ 34-94).
November 14, 2018, the Honorable Judge Peggy Leen entered a
Report and Recommendation, (ECF No. 66), stating that default
judgment should be entered against Daly. Additionally, Judge
Leen entered a Report and Recommendation, (ECF No. 67),
stating that default judgment should be entered against HAS.
No objections were filed. Accordingly, on December 10, 2018,
the Court adopted Judge Leen's recommendations (ECF Nos.
71, 72), and entered default judgment against Daly and HAS,
(ECF No. 73).
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.