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Bank of New York v. Santos

United States District Court, D. Nevada

June 10, 2019

THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006- OA2 MORTGAGE PASS THROUGH CERTIFICATE, SERIES 2006-OA2, Plaintiff,
v.
RONALD-GARCIA SANTOS, aka Ronald G. Santos, an individual; PAVAROTTI TRUST #8197, NV WEST SERVICING, LLC, as Trustee; TRAMONTO VILLAGGIO HOMEOWNERS ASSOCIATION, Defendants. PAVAROTTI TRUST #8197, NV WEST SERVICING, LLC, as Trustee, Counterclaimant,
v.
THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDER S CWALT, INC. ALTERNATIVE LOAN TRUST 2006- OA2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OA2, Counterdefendant.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This dispute arises from the foreclosure sale of real property located at 8197 Pavarotti Avenue, Las Vegas, NV 89178 (“Property”), to satisfy a homeowners' association lien. There are three pending motions before the Court. First, Defendant Pavarotti Trust #8197, NV West Servicing, LLC as Trustee (“Pavarotti”) renewed its motion to dismiss (“MTD”) the amended complaint (“FAC”) (ECF No. 33). (ECF No. 66.) Next, in response to Pavarotti's MTD, Plaintiff The Bank of New York as Trustee for the Certificateholders CWALT, Inc. Alternative Loan Trust 2006-OA2 Mortgage Pass-Through Certificates, Series 2006-OA2 (“BoNY”) moved for summary judgment (“MSJ”) on its claims for quiet title and declaratory relief against Pavarotti along with requesting that the Court convert Pavarotti's MTD for consideration as a matter of summary judgment. (ECF No. 69.) Pavarotti then countered with its own MSJ-essentially a cross-motion to BoNY's MSJ. (ECF No. 74.) Because the Court agrees with BoNY that there was proper and adequate tender of the superpriority amount of the lien, the Court grants BoNY's MSJ and therefore denies Pavarotti's MSJ. As the issue of tender required the Court to look beyond the pleadings, Pavarotti's MTD is denied as moot.[1]

         II. BACKGROUND

         The following facts are undisputed unless otherwise indicated.

         Ronald G. Santos and Rowena B. Santos (“Borrowers”) financed the Property in 2006 with a $550, 650.00 loan (“Loan”) from Countrywide Home Loans, Inc. (ECF No. 69-1.) The loan was secured by a deed of trust (“DOT”) against the Property. (Id.) The DOT named Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary. (Id. at 3.) The DOT was assigned to BoNY in August 2010 via corporate assignment. (ECF No. 69-2.)

         Borrowers failed to pay all HOA assessments of $48.00 monthly. (ECF No. 69-5.) Accordingly, the HOA, through its agent, Absolute Collection Services, LLC (“Absolute”), recorded a notice of delinquent assessment lien (“Notice”) against the Property on August 15, 2011. (ECF No. 69-3.) The Notice provided that assessments were a total amount of $1, 167.91 as of August 12, 2011, and that additional charges would accrue. (Id. at 2.)

         The HOA recorded a notice of default and election to sell in early November 2011, which provided that Borrowers owed $2, 139.19 as of November 8, 2011. (ECF No. 69-4.) About December 29, 2011, Bank of America, N.A. (“BANA”) sent a check to the HOA in the amount of $2, 139.19-the total amount noted in the default notice. (73-2 at 5.) The HOA received the check (id. at 3), but the HOA's ledger/statement of account did not reflect the full amount paid (id. at 2-3). In late October 2012, a request was made for an updated statement of the HOA's statement of account to reflect application of the missing amount and the current amounts due (id. at 2). The HOA's statement of accounts was updated, and “as of October 30, 2012” reflected payments received, totaling $2, 139.19, with the HOA/Absolute electing to apply $439.19 to owed assessments and another $1, 700.00 to collection costs. (ECF No. 69-7.)

         On August 13, 2012, the HOA, through Absolute, recorded a notice of trustee's sale. (ECF No. 69-8.) This notice provided that the total amount due to the HOA was $2, 746.75, plus interest, advances, estimated fees, charges, and expenses of the trustee. (Id.) This notice was not mailed to BoNY (ECF No. 69-5 at 37). Absolute sold the Property at the HOA Sale to Pavarotti on December 11, 2012, for $7, 150.00 (ECF No. 69-9.)[2]

         Because BoNY presents evidence of tender here, the Court considers the posture of this case as a matter of summary judgment. Because Pavarotti has filed an MSJ (ECF No. 74), the Court will consider the arguments Pavarotti makes therein in addition to its response to BoNY's MSJ in lieu of the arguments in the MTD. (Compare ECF No. 66 with ECF No. 74.)

         III. LEGAL STANDARDS

         “The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, ” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252. Moreover, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

         IV. ...


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