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Bank of America, N.A. v. Desert Linn Owners' Association

United States District Court, D. Nevada

July 11, 2019

BANK OF AMERICA, N.A., Plaintiff,
v.
DESERT LINN OWNERS' ASSOCIATION, et al., Defendants.

          AMENDED ORDER

          MMES C. MAHAN, UN ITED STATES DISTRICT JUDGE

         On April 3, 2019, the Ninth Circuit vacated 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, No. 17-15796, 2019 WL 1461317 (9th Cir. April 3, 2019) (“Arlington”).

         I. Facts

         This action arises from a dispute over real property located at 1547 Frisco Peak Dr., #215, Henderson, Nevada 89014 (the “property”). (ECF No. 1).

         Bess Bernard purchased the property on or about October 23, 2009. See (ECF No. 44-1). Bernard financed the purchase with a loan in the amount of $73, 641.00 from KB Home Mortgage, LLC (“KB Home”). Id. KB Home secured the loan with a deed of trust, which names Chicago Title Agency of Nevada, Inc. as the trustee, and KB Homes as the lender and beneficiary. Id. On October 27, 2009, BANA acquired all beneficial interest in the deed of trust via an assignment, which BANA recorded with the Clark County recorder's office. (ECF No. 44-3).

         On December 6, 2012, defendant Desert Linn Condominiums (“Desert Linn”), through its agent defendant Nevada Association Services, Inc. (“NAS”), recorded a notice of delinquent assessment lien (“the lien”) against the property for Bernard's failure to pay Desert Linn in the amount of $2, 052.58. (ECF No. 44-4). On March 27, 2013, Desert Linn recorded a notice of default and election to sell pursuant to the lien, stating that the amount due was $3, 339.32 as of March 25, 2013. (ECF No. 44-5).

         In an attempt to exercise its right of redemption, BANA requested from Desert Linn the superpriority amount of the lien. (ECF No. 44-6). In response, Desert Linn provided a payoff ledger of Bernard's total amount due from July 2009 to May 2010. Id. The payoff ledger shows an outstanding balance of $3, 228.00 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 Log Cabin's monthly assessment against the property was $130.00. Id.

         BANA used Desert Linn's ledger to calculate the superpriority amount as $1, 170.00, the sum of nine months of common assessments. Id. On June 13, 2013, BANA sent a letter and a check for that amount to Desert Linn. 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. Desert Linn rejected the payment without explanation. Id.

         On October 22, 2013, Desert Linn recorded a notice of foreclosure sale against the property. (ECF No. 42-5). On November 15, 2013, Desert Linn sold the property in a nonjudicial foreclosure sale to defendant Saticoy Bay LLC Series 1547 Frisco Peak (“Saticoy Bay”) in exchange for $11, 200.00. (ECF No. 44-7). On November 22, 2013, Saticoy Bay recorded the foreclosure deed with the Clark County recorder's office. Id.

         On March 18, 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 NAS and Desert Linn; (3) wrongful foreclosure against NAS and Desert Linn; and (4) injunctive relief against Saticoy Bay. (ECF No. 1). On April 8, 2016, Saticoy Bay filed an answer and counterclaim against BANA for quiet title and declaratory relief. (ECF No. 9).

         On April 27, 2017, the court entered summary judgment, holding that the foreclosure sale extinguished the deed of trust. (ECF No. 50). That same day, the clerk entered judgment. (ECF No. 51).

         On May 26, 2017, BANA appealed to the Ninth Circuit. (ECF No. 52). On April 3, 2019, the Ninth Circuit vacated and remanded, directing the court to commence proceedings consistent with Arlington. (ECF No. 58). Now, the court adjudicates the merits of this action.

         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 ...


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