United States District Court, D. Nevada
C. MAHAN, UN ITED STATES DISTRICT JUDGE
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)
action arises from a dispute over real property located at
1547 Frisco Peak Dr., #215, Henderson, Nevada 89014 (the
“property”). (ECF No. 1).
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).
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
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.
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.
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.
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).
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
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.
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 ...