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