United States District Court, D. Nevada
BANK OF NEW YORK MELLON FKA BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC. CHL MORTGAGE PASS-THROUGH 2006-OA4, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OA4, Plaintiff,
WILLOW CREEK COMMUNITY ASSOCIATION ICKWORTH COURT TRUST RED ROCK FINANCIAL SERVICES, LLC Defendants. ICKWORTH COURT TRUST Counter Claimant
BANK OF NEW YORK MELLON FKA BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC. CHL MORTGAGE PASS-THROUGH 2006-OA4, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OA4 Counter Defendant
RICHARD F. BOULWARE, II United States District Court Judge
the Court are Defendant Ickworth Court Trustâs (âIckworthâ)
Motion for Summary Judgment, Plaintiff Bank of New York
Mellonâs Motion for Summary Judgment (âBNYâ), Defendant
Ickworth Court Trustâs Motion for Leave to File Supplement
Opposition, and Plaintiff Bank of New York Mellonâs Motion to
Certify Question of Law Before the Nevada Supreme Court. ECF
Nos. 41, 41, 4850. For the following reasons, the Court
grants Plaintiffâs Motion for Summary Judgment in part and
denies all other motions.
filed its complaint on March 31, 2016. ECF No. 1. In the
complaint BNY seeks quiet title/ declaratory judgment and
injunctive relief. The complaint also asserts causes of
action for breach of Chapter 116 of the Nevada Revised
Statutes (“NRS”), wrongful foreclosure, and
deceptive trade practices under NRS 598.0923. Ickworth
answered on May 2, 2016 and asserted counterclaims for quiet
title and declaratory relief. Defendant Red Rock Financial
Services LLC (“Red Rock”) filed a motion to
dismiss on May 4, 2016. Defendant Willow Creek Community
Association answered on September 30, 2016. On November 22,
2016, the Court administratively stayed the case and denied
all pending motions without prejudice pending the mandate
issued in Bourne Valley Court Tr. v. Wells Fargo Bank,
N.A., 832 F.3d 1154 (9th Cir. 2016), cert
denied 137 S.Ct. 2296 (2017). The Court lifted the stay
on September 17, 2018. ECF NO. 36. On January 17, 2019 both
Ickworth and BNY moved for summary judgment. ECF Nos. 41, 42.
Both motions were fully briefed. ECF Nos. 43, 44, 45, 46, 47.
On March 27, 2019, Ickworth moved for leave to file
supplemental opposition to BNY’s motion for summary
judgment. ECF No. 48. BNY filed an opposition and a motion to
certify a question of law to the Nevada Supreme Court. ECF
Nos. 49, 50.
Court finds the following facts to be undisputed.
Williams purchased real property located at 10829 Ickworth
Court, Las Vegas, Nevada 89135 in December 2005 (“the
property”). Williams financed ownership of the property
by way of a loan in the amount of $1, 000, 000.00 as
evidenced by a note and secured by a deed of trust (the
senior deed of trust) recorded on January 12, 2006. The
property was subject to the covenants, conditions and
restrictions (CC&Rs) of the Willow Creek Community
Association (“HOA”). The senior deed of trust was
assigned to BNY on April 22, 2011.
fell behind on HOA dues. Subsequently the HOA, through its
agent Red Rock, recorded a lien for delinquent assessments on
December 6, 2010. On February 8, 2011 the HOA through its
agent recorded a notice of default and election to sell
pursuant to the lien for delinquent assessment.
February 23, 2011, Miles Bauer Bergstrom & Winters
(“Miles Bauer”) on behalf of then-loan servicer
and nonparty Bank of America (“BANA”) sent a
letter to Red Rock requesting the amount of the superpriority
portion of the lien. Red Rock responded to the Miles Bauer
letter by stating that the current amount owed was $10,
267.72 and providing a payoff listing amounts due. The
HOA’s monthly assessments were $240.00 at the time. The
payoff did not list any maintenance or nuisance abatement
charges due as of December 2010.
April 1, 2011 Miles Bauer sent a check for $2, 340.00 to the
HOA through Red Rock. Red Rock, on behalf of the HOA,
rejected the payment.
August 29, 2012, Red Rock recorded a notice of foreclosure
sale against the property. The sale occurred on January 22,
2013. Ickworth purchased the property for $28, 100 at the
judgment is appropriate 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); accord Celotex Corp. v. Catrett, 477 U.S.
317, 322(1986).When considering the propriety of summary
judgment, the court views all facts and draws all inferences
in the light most favorable to the nonmoving party.
Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th
Cir. 2014). If the movant has carried its burden, the
nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts
…. Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Scott v.
Harris, 550 U.S. 372, 380 (2007) (alteration in
original) (internal quotation marks omitted).
improper for the Court to resolve genuine factual disputes or
make credibility determinations at the summary judgment
stage. Zetwick v. Cty. of Yolo, 850 ...