United States District Court, D. Nevada
ORDER (1) FOR SUPPLEMENTAL BRIEFING AND (2) GRANTING
UNOPPOSED MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY
[ECF NO. 61]
P. GORDON UNITED STATES DISTRICT JUDGE
Bank of New York Mellon (BONY) sues to determine whether a
deed of trust still encumbers property located at 7524
Midnight Rambler Street in Las Vegas following a non-judicial
foreclosure sale conducted by the homeowners association
(HOA), defendant Terra Bella Owners Association, Inc. (Terra
Bella). Defendant Midnight Rambler Trust (Trust) purchased
the property at the HOA foreclosure sale and later
quitclaimed it to defendant Saticoy Bay LLC, Series 7524
Midnight Rambler Street (Saticoy).
seeks a declaration that the HOA sale did not extinguish the
deed of trust. Alternatively, it asserts damages claims
against Terra Bella and its foreclosure agent, defendant
Hampton & Hampton Collections LLC
(Hampton). Saticoy and Trust counterclaim to quiet
parties move for summary judgment, raising a variety of
grounds. Because the parties have not adequately addressed
the pivotal factual question of whether BONY received actual
notice of the 2012 foreclosure notices, I order the parties
to file supplemental briefs.
former homeowners, Robert Garvey and Rosonna Garvey, executed
a deed of trust encumbering the Midnight Rambler property in
2004. ECF No. 51-1. The original lender was Full Spectrum
Lending, Inc., and Mortgage Electronic Registration Systems,
Inc. (MERS) was identified as the beneficiary of the deed of
trust. Id. The next year, the Garveys quitclaimed
the property to the Robert & Rosonna M. Garvey Family
Limited Partnership (Garvey Family Limited Partnership), with
the only address identified as the Midnight Rambler address.
ECF No. 51-2. Information from the Nevada Secretary of State
shows Robert and Rosonna Garvey as the only officers for the
partnership and provides the Midnight Rambler address for the
partnership and for the Garveys. ECF No. 55-16.
August 2008, Rosonna Garvey filed for
bankruptcy. ECF No. 51-4. The Midnight Rambler
property was listed in her bankruptcy schedule. Id.
at 11, 16.
January 2009, Hampton sent the Garveys a letter notifying
them of a delinquency in the homeowners assessments and
advising them as to how to cure the default. ECF No. 50-6. On
March 2, 2009, Hampton recorded a notice of delinquent
assessment lien. ECF No. 50-7. Later that same month, Hampton
mailed, but did not record, a notice of default. ECF No. 57-1
at 4. At that time, BAC Home Loans Servicing, L.P. (BAC) was
the servicer for the loan. ECF No. 50-14 at 9. BAC received a
copy of this notice of default. Id. In June 2009,
Rosonna Garvey's bankruptcy proceeding was closed. ECF
Nos. 51-6 at 5-6; 51-8. The next month, Hampton mailed, but
did not record, a notice of sale. ECF No. 57-1 at 5. BAC
received this notice of sale. Id. The sale did not
merged into BONY in July 2011. ECF No. 50-14 at 9. That same
month, MERS assigned the deed of trust to BONY as Trustee for
the Certificateholders of CWABS, Inc., Asset Backed
Certificates, Series 2004-AB1, and it listed an address for
BONY. ECF No. 50-5. Thereafter, Bank of America, N.A. (BANA)
serviced the loan for BONY. ECF No. 50-14 at 9.
August 24, 2012, Hampton recorded a notice of default and
election to sell. ECF No. 50-8. Hampton sent the notice of
default by certified and first-class mail to Robert and
Rosonna Garvey at the Midnight Rambler address. ECF No. 50-9
at 2. The certified mail was returned and marked
“return to sender.” ECF No. 51-7 at 31-32.
Hampton sent the notice of default to BONY by first-class
mail at the address listed in the deed of trust, but it did
not include in the mailing address that it was being sent to
BONY as Trustee for the Certificateholders of CWABS, Inc.,
Asset Backed Certificates, Series 2004-AB1. Id.;
see also ECF No. 51-7 at 15. BANA, who was
BONY's servicer at the time, has no record of receiving
the notice of default. ECF No. 51-10 at 2.
December 14, 2012, Hampton recorded a notice of trustee's
sale. ECF No. 50-10. That notice referred back to the March
2, 2009 notice of default, not the August 2012 notice of
default. ECF Nos. 51-11; 51-7 at 17-18. Hampton sent the
notice of sale by certified and first-class mail to the
Garveys at the Midnight Rambler address and by first-class
mail to the Garvey Family Limited Partnership at the same
address. ECF No. 50-11; 51-7 at 18, 25. There is no evidence
that the certified mail was returned to Hampton or that
someone signed for it. Hampton sent the notice of sale to
BONY by first class mail and again did not identify the
trustee information in the address. ECF No. 50-11; 51-7 at
25. BANA has no record of receiving the notice of sale. ECF
No. 51-10 at 2.
2012, it was BANA's policy upon receiving an HOA
foreclosure notice to retain the law firm Miles Bauer
Bergstrom & Winters, LLP to determine and pay the
superpriority amount. ECF No. 51-10 at 3. There is no
evidence BANA did so in relation to this property.
foreclosure sale took place on January 24, 2013. ECF No.
50-3. Trust purchased the property at the sale for $18,
100.00. Id. Trust later transferred the property to
Saticoy. ECF No. 50-2. On August 14, 2019, the bankruptcy
court in Rosonna Garvey's bankruptcy proceeding
retroactively annulled the automatic stay in relation to the
Midnight Rambler property. ECF No. 61-1.
judgment is appropriate if the movant shows “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), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000); Sonner v. Schwabe N. Am.,
Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To
defeat summary judgment, the nonmoving party must produce
evidence of a genuine dispute of material fact that could
satisfy its burden at trial.”). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
DECLARATORY RELIEF CLAIMS
parties raise a variety of arguments regarding BONY's
declaratory relief claim and Saticoy and the Trust's
counterclaims for declaratory relief and to quiet title. I
address them in turn below.
Statute of Limitations
and Trust argue that BONY's declaratory relief claim is
untimely. I have previously ruled that the four-year catchall
limitation period in Nevada Revised Statutes § 11.220
applies to claims under Nevada Revised Statutes § 40.010
brought by a lienholder seeking to determine whether an HOA
sale extinguished a deed of trust. See Bank of Am., N.A.
v. Country Garden Owners Ass'n, No.
2:17-cv-01850-APG-CWH, 2018 WL 1336721, at *2 (D. Nev. Mar.
14, 2018). The HOA foreclosure sale took place on January 24,
2013. BONY filed its complaint on March 11, 2016. ECF No. 1.
Therefore, its declaratory relief claim is timely. I deny
Saticoy and Trust's motion for summary judgment on this