United States District Court, D. Nevada
J. Dawson United States District Judge
are three motions pending before the Court. First is
Defendant Saticoy Bay, LLC's motion to dismiss (#46).
Plaintiff, Bank of New York Mellon, responded and
simultaneously moved for partial summary judgment (##47/48).
Saticoy Bay replied (#49) and opposed BNY Mellon's motion
for partial summary judgment (#50). Defendant, Mews
Homeowners Association, also moves for summary judgment
(#61). BNY Mellon has responded (#63), and Mews replied
a dispute over who holds the superior interest in real
property located at 1218 Coach Lane in Las Vegas, Nevada. BNY
Mellon and Saticoy Bay each claim the superior interest-BNY
Mellon by virtue of a lender's deed of trust and Saticoy
Bay by virtue of nonjudicial foreclosure and sale. Mews and
Homeowners Association Services facilitated the nonjudicial
foreclosure and trustee's sale but do not claim any
interest in the property. BNY Mellon argues that its deed of
trust survived Mews' foreclosure because the bank
tendered the superpriority lien before foreclosure. The Court
agrees. BNY Mellon has shown that its predecessor in interest
submitted valid tender before Mews' foreclosure and sale
and that Mews foreclosed anyway. Therefore, BNY Mellon's
deed of trust survived, and Saticoy Bay took its interest
subject to BNY Mellon's.
parties mostly agree on the facts. In 2006, former-homeowner
and non-party Roosevelt McCullom purchased the Coach Lane
property. Countrywide Home Loans financed the purchase and
secured its interest by recording a deed of trust against the
property. Deed of Trust, ECF No. 47 Ex. A. Countrywide
eventually assigned the deed of trust to Deutsche Bank.
Assignment of DOT, ECF No. 47 Ex. B. The Coach Lane property
is part of the Mews Homeowners Association and is subject to
the association's Covenants, Conditions, and Restrictions
(“CC&Rs”). The CC&Rs required McCullom to
pay monthly assessments for shared maintenance and general
McCollum fell behind on his assessments, which prompted Mews
to initiate foreclosure proceedings. In February of 2012,
Mews' agent, Homeowner Association Services, recorded a
Notice of Delinquent Assessment Lien against the Coach Lane
property. ECF No. 47 Ex. C. The notice identified a
delinquency of $1, 242.00 and warned that the balance would
continue to increase monthly if not cured. Id
Neither McCullom nor BNY Mellon payed the delinquency, so
Homeowners Association Services recorded a Notice of Default
and Election to Sell under the deed of trust. ECF No. 47 Ex.
D. That notice identified a past-due balance of $1, 523.94
plus additional costs and fees. Id.
receiving the Notice of Default and Election to Sell, BNY
Mellon's predecessor in interest, Bank of America,
retained the law firm Miles, Bauer, Bergstrom & Winters
(Miles Bauer) to ascertain and satisfy Mews'
superpriority lien. On September 5, 2012, Miles Bauer sent
Mews and Homeowners Association Services a letter requesting
a ledger of the association's outstanding fees and
assessments. ECF No. 47 Ex. G-1. The letter acknowledged that
Mews' lien was “arguably senior to BANA's first
deed of trust” and that the bank would pay that amount,
“whatever it [was].” Id Homeowners
Association Services provided a ledger of fees on the Coach
Lane property, which identified the association's monthly
assessments as $32.00. HOA Ledger, ECF No. 47 Ex. G-2. From
that ledger, Bank of America determined that nine months of
assessments was $288.00. The bank then tendered a check for
$909.67 to Homeowners Association Services to cover nine
months of missed assessments as well as reasonable collection
costs. ECF No. 47 Ex. G-3. Homeowners Association Services
rejected the check.
returning Bank of America's check, Homeowners Association
Services proceeded with its foreclosure. In February of 2014,
the association recorded a Notice of Trustee's Sale. ECF
No. 47 Ex. E. Eight months later, the association recorded a
second Notice of Trustee's Sale. ECF No. 47 Ex. F.
Homeowners Association Services sold the property to Saticoy
Bay for $20, 300 at a trustee's sale on October 30, 2014.
Foreclosure Deed, ECF No. 47 Ex. I.
February 14, 2017, BNY Mellon filed this case, seeking quiet
title and a declaration that its deed of trust survived the
association's foreclosure. It brought three causes of
action split between defendants Mews Homeowners Association,
Saticoy Bay, LLC, and Homeowners Association Services. BNY
Mellon brought its first cause of action-quiet title and
declaratory relief-against every defendant. Its second and
third causes of action-breach of NRS § 116.3116 and
wrongful foreclosure, respectively-the bank brought against
Mews and Homeowner Association Services. The bank will only
pursue those claims if the Court determines that the
association's foreclosure extinguished its deed of trust.
The bank's final cause of action is for injunctive relief
against Saticoy Bay. See generally Am. Compl., ECF
No. 24. Mews answered the complaint and asserted crossclaims
for indemnity, contribution, apportionment, breach of
contract, and declaratory relief against Homeowners
Association Services. See Mews' Answer, ECF No.
31. Homeowners Association Services has not participated in
the suit despite being properly served, and the Clerk of
Court has entered default against it. ECF No. 29.
of 2017, the parties stipulated to stay the case pending the
final outcome of Bourne Valley Court Tr. v. Wells Fargo
Bank, N. A., 832 F.3d 1154 (9th Cir. 2016), cert.
denied, --- U.S. ---, 137 S.Ct. 2296 (2017). After the
Supreme Court denied certiorari, this Court lifted the stay
and allowed the parties to move to modify the discovery plan
and scheduling order. If the parties elected not to modify
the scheduling order, the Court set a forty-five-day deadline
on dispositive motions. Order Lifting Stay 2-3, ECF No. 45.
No. party has moved to modify the scheduling order or
discovery plan. Instead, Saticoy Bay moved to dismiss and BNY
Mellon and Mews each moved for summary judgment. The
parties' motions are fully briefed, and the Court turns
to their merits.
purpose of summary judgment is to avoid unnecessary trials by
disposing of factually unsupported claims or defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986); Nw. Motorcycle Ass'n v. U.S. Dept. of
Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). It is
available only where the absence of material fact allows the
Court to rule as a matter of law. Fed.R.Civ.P. 56(a);
Celotex, 477 U.S. at 322. Rule 56 outlines a burden
shifting approach to summary judgment. First, the moving
party must demonstrate the absence of a genuine issue of
material fact. The burden then shifts to the nonmoving party
to produce specific evidence of a genuine factual dispute for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). A genuine issue of fact
exists where the evidence could allow “a reasonable
jury [to] return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court views the evidence and draws all available
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). Yet, to
survive summary judgment, the nonmoving party must show more
than “some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 586.
parties have filed competing motions for summary judgment,
the Court must review each motion on its own merits. Fair
Housing Council of Riverside Cty., Inc. v. Riverside
Two, 249 F.3d 1132, 1136 (9th Cir. 2001). In reviewing
each motion, the Court views the evidence and makes all
available inference in favor non-moving party. See Kaiser
Cement Corp., 793 F.2d at 1103. At bottom, a party does
not prevail on summary judgment solely because the other
party did not prevail. See Riverside Two, 249 F.3d