United States District Court, D. Nevada
BANK OF NEW YORK MELLON, f/k/a Bank of New York, as Trustee for the Certificateholders of the CWABS, Inc., Asset-Backed Certificates, Series 2006-2, Plaintiff,
SOMMERSET PARK HOMEOWNERS ASSOCIATION, et al., Defendants.
M. Navarro, Chief Judge.
before the Court is the Motion for Partial Summary Judgment,
(ECF No. 85), filed by Plaintiff Bank of New York Mellon
(“Plaintiff”). Defendants SFR Investments Pool 1, LLC
(“SFR”) and Sommerset Park Homeowners Association
(“HOA”) (collectively “Defendants”)
filed Responses, (ECF Nos. 88, 90), and Plaintiff filed a
Reply, (ECF No. 95).
pending before the Court are the Motions for Summary
Judgment, (ECF Nos. 84, 86), filed by Defendants. Plaintiff
filed Responses to Defendants' Motions, (ECF Nos. 91,
92), HOA filed a Response to SFR's Motion, (ECF No. 89),
and Defendants filed Replies in support of their
summary-judgment Motions, (ECF Nos. 93, 95).
reasons addressed below, Plaintiffs Motion for Partial
Summary Judgment is GRANTED and
Defendants' Motions for Summary Judgment are
This case arises from the non-judicial foreclosure on real
property located at 6652 Lund Drive, Las Vegas, Nevada 89108
(the “Property”). (See Deed of Trust,
ECF No. 85-1). In 2005, Liliana M. Morfin and Raul
Chiang-Bueno (“Borrowers”) financed their
purchase of the Property by way of a loan in the amount of
$228, 000 secured by a deed of trust. (Id.). BNYM
became beneficiary under the deed of trust through an
assignment recorded on November 17, 2017. (See
Assignments of Deed of Trust, ECF Nos. 85-2-85-5).
2010, upon Borrowers' failure to pay all amounts due,
HOA, through its agent Alessi & Koenig, LLC
(“A&K”), initiated foreclosure proceedings on
the Property. (See Notice of Lien, ECF No. 85-8);
(Notice of Default, ECF No. 85-9). In December of that year,
Bank of America, NA. (“BANA”), Plaintiffs loan
servicer at the time, sent A&K a letter requesting the
superpriority portion of HOA's lien. (See
Request for Accounting, Ex. 2 to Miles Bauer Aff, ECF No.
85-10). A&K responded with a payment history report from
which BANA calculated nine months' worth of common
assessments. (Payment History Report, Ex. 3 to Miles Bauer
Aff). On December 29, 2010, BANA sent A&K a check for
$228.09, which A&K rejected. (Tender Letter, Ex. 4 to
Miles Bauer Aff); (see also A&K 30(b)(6) Dep.
46:24-47:5, ECF No. 85-11).
November 2012, A&K proceeded with foreclosure
proceedings, recording a notice of trustee's sale.
(Notice of Sale, ECF No. 85-14). On December 5, 2012, A&K
sold the Property to SFR for $7, 800.00. (See
Trustee's Deed Upon Sale, ECF No. 85-15).
filed this quiet title action on July 29, 2016, bringing the
following causes of action arising from the foreclosure and
subsequent sale of the Property: (1) quiet title with the
requested remedy of declaratory relief; (2) breach of NRS
116.1113; (3) wrongful foreclosure; and (4) injunctive
relief. (Id. ¶¶ 29-77). On December 2,
2016, SFR filed an Answer asserting competing quiet title and
injunctive relief counterclaims against Plaintiff, as well as
crossclaims against Borrowers, Household Finance Realty
Corporation of Nevada (“HFRC”), University
Medical Center (“UMC”), and Allied Collection
Services, Inc. (“Allied”). (See
Answer 17:11- 18:19, ECF No. 24).
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.
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 but 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.
moves for summary judgment on the quiet title claim,
asserting that BANA's tender of payment to A&K
preserved its deed of trust by extinguishing the HOA
superpriority lien prior to the sale. (Pl.'s Mot. Summ.
J. (“Pl.'s MSJ”) 5:14-8:21, ECF No. 85).
Plaintiff further contends that the deed of trust remains a
valid encumbrance on the Property because the foreclosure was
conducted pursuant to an unconstitutional statute and,
alternatively, the Property's inadequate sales ...