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Bank of America, N.A. v. Arlington West Twilight Homeowners Association

United States District Court, D. Nevada

May 24, 2019

BANK OF AMERICA, N.A., Plaintiffs,


         On April 3, 2019, the Ninth Circuit reversed and remanded the court's order entering summary judgment against plaintiff Bank of America, N.A. (“BANA”). Pursuant to the Ninth Circuit's directive, the court hereby adjudicates this matter consistent with Bank of America, N.A. v. Arlington West Twilight Homeowners Association, 920 F.3d 620 (9th Cir. 2019).

         I. Facts

         This action arises from a dispute over real property located at 9179 Smugglers Beach Court, Las Vegas, Nevada 89178 (the “property”). (ECF No. 1).

         Roy and Michelle Kindard (the “Kindards”) purchased the property on March 26, 2008. (ECF Nos. 1, 26-1). The Kindards financed the purchase with a loan in the amount of $294, 956.00 from DHI Mortgage Company, LTD. (“DHI”). (ECF No. 26-1). DHI secured the loan with a deed of trust, which names DHI as the lender, DHI Title of Nevada, Inc. as the trustee, and Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary as nominee for the lender and lender's successors and assigns. Id. BANA currently holds all beneficial interest in the deed of trust. See (ECF No. 36-2).

         On October 21, 2010, defendant Arlington West Twilight Homeowners Association (“Arlington”), through its agent defendant Alessi & Koenig, LLC (“A&K”), recorded a notice of delinquent assessment lien (“the lien”) against the property for the Kindards' failure to pay Arlington in the amount of $850.00. (ECF No. 36-3). On January 31, 2011, Arlington recorded a notice of default and election to sell pursuant to the lien, stating that the amount due was $1, 807.00 as of November 18, 2010. (ECF No. 36-4).

         In an attempt to exercise its right of redemption, BANA's predecessor in interest requested from Arlington the superpriority amount of the lien. (ECF No. 36-7). In response, Arlington provided a payoff ledger showing the Kindards' total amount due from April 2010 to April 2011. Id. The payoff ledger shows an outstanding balance of $765.00 but does not state what portion of the balance constitutes the superpriority portion of the lien. Id. The ledger also does not include charges for maintenance and nuisance abatement. Id. The ledger does state, however, that Arlington's monthly assessment against the property was $47.00. Id.

         BANA's predecessor in interest used Arlington's ledger to determine that the superpriority amount was $423.00. Id. On May 10, 2011, BANA's predecessor in interest sent a letter and a check for that amount to Arlington. Id. The letter explained that the check was the sum of nine months of common assessments and intended to pay off the superpriority portion of the lien. Id. Arlington rejected the check without explanation. Id.

         On August 14, 2012, Arlington recorded a notice of trustee's sale against the property. (ECF No. 36-6). On September 12, 2012, Arlington sold the property in a nonjudicial foreclosure sale to defendant Thomas Jessup, LLC in exchange for $7, 350.00. (ECF No. 36-8). On October 2, 2012, Arlington recorded the trustee's deed upon sale with the Clark County recorder's office. Id. Thomas Jessup, LLC, Series IV (“Thomas Jessup Series IV”) acquired the property from Thomas Jessup, LLC via quitclaim deed on May 31, 2013. (ECF No. 1).

         On March 24, 2016, BANA initiated this action, asserting four causes of action: (1) quiet title/declaratory judgment against all defendants; (2) breach of NRS 116.1113 against Arlington and A&K; (3) wrongful foreclosure against Arlington and A&K; and (4) injunctive relief against Thomas Jessup Series IV. (ECF No. 1). On April 15, 2016, Thomas Jessup Series IV filed an answer and cross/counterclaims, asserting two causes of action: (1) quiet title against all parties and (2) declaratory relief against BANA. (ECF No. 11).

         On January 26, 2017, the court dismissed BANA's breach of NRS 116.1113 and wrongful foreclosure claims. (ECF No. 45). On March 22, 2017, the court entered summary judgment, holding that the foreclosure sale extinguished the deed of trust. (ECF No. 47). On April 20, 2017, BANA appealed to the Ninth Circuit. (ECF No. 49). On April 3, 2019, the Ninth Circuit reversed and remanded, directing the court to hold that the bank's tender of $423 satisfied the superpriority portion of the lien. (ECF No. 56). The court now adjudicates this action consistent with the Ninth Circuit's mandate.

         II. Legal Standard

         The Federal Rules of Civil Procedure allow summary judgment 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). 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).

         For purposes of summary judgment, disputed factual issues should be construed in favor of the non-moving party. Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be entitled to a denial of summary judgment, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Id.

         In determining summary judgment, a court applies a burden-shifting analysis. The moving party must first satisfy its initial burden. “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).

         By 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 non-moving 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 ...

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