United States District Court, D. Nevada
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-NC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-NC1, a California Company, Plaintiff,
AIRMOTIVE INVESTMENTS, LLC, a Nevada Limited Liability Company, HIGHLAND RANCH HOMEOWNERS ASSOCIATION, a Nevada non-profit corporation, Defendants.
R. HICKS UNITED STATES DISTRICT JUDGE
are three motions pending before the court. First, Deutsche
Bank National Trust Company, as Trustee for Morgan Stanley
ABS Capital I Inc. Trust 2007-NC1 Mortgage Pass-Through
Certificates, Series 2007-NC1, a California Company,
(“Deutsche Bank”) moves this court for summary
judgment (ECF No. 88). Defendant, Highland Ranch Homeowners
Association (“the HOA” or “Highland
Ranch”) and defendant, Airmotive Investments, LLC
(“Airmotive”) filed responses (ECF Nos. 89 &
91), and Deutsche Bank replied (ECF Nos. 93 & 95).
defendant Highland Ranch filed a counter motion for summary
judgment. ECF No. 90. Deutsche Bank responded (ECF No. 94),
and Highland Ranch replied (ECF No. 97). Third, defendant
Airmotive filed a counter motion for summary judgment. ECF
Nos. 92. Deutsche Bank responded (ECF No. 96), and Airmotive
replied (ECF No. 98).
SFR Invs. Pool 1, LLC v. Bank of N.Y. Mellon
(“Star Hill”), the Nevada Supreme Court
held that Nevada Revised Statute (“NRS”) §
116.31168 “fully incorporated both the opt-in and
mandatory notice provisions of NRS 107.090.” 422 P.3d
1248, 1253 (Nev. 2018). Therefore, the statute “is not
facially unconstitutional on the basis of an impermissible
opt-in notice scheme, ” and the Ninth Circuit's
holding in Bourne Valley Court Trust v. Wells Fargo Bank,
N.A., 832 F.3d 1154 (9th Cir. 2016), is no longer
controlling authority. Bank of America, N.A. v. Arlington
West Twilight Homeowners Ass'n, 920 F.3d 620, 623-24
(9th Cir. 2019). Accordingly, Deutsche Bank's motion for
summary judgment is denied, and Highland Ranch's and
Airmotive's counter motions for summary judgement are
matter arises from a nonjudicial foreclosure sale on real
property located at 886 Midnight Court, Sun Valley, Nevada
89433, (“the property”), conducted under NRS
§ 116.3116 et seq. See ECF Nos. 86-2; 86-6;
86-7; 86-8. Anginique R. Wilson and Claudio Cesar Alvanez,
wife and husband as joint tenants (“borrowers”),
acquired title to and ownership of the property, executing a
deed of trust in September 2006, designating New Century
Mortgage Corporation as the lender, First Centennial as
trustee, and Mortgage Electronic Registration Systems, Inc.
(“MERS”) as the beneficiary, in the amount of
$178, 750. ECF No. 86-2. The deed of trust was recorded in
the Washoe County Recorder's Office on September 7, 2006,
as document number 3435695. Id. The property sits in
the Highland Ranch Homeowners Association and is therefore
subject to the HOA's assessments. See ECF No. 89
at 2 (citing ECF No. 66-1).
March 5, 2010, MERS, as nominee for New Century Mortgage
Corporation, assigned its interest in the deed of trust to
Deutsche Bank National Trust Company, as Trustee for Morgan
Stanley ABS Capital I Inc. Trust 2007-NC1 via a Corporation
Assignment of Deed of Trust recorded in the Washoe County
Recorder's Office as document number 3856469. ECF No.
86-3. On July 19, 2012, the deed of trust was then assigned
to Deutsche Bank National Trust Company, as Trustee Morgan
Stanley ABS Capital I Inc. Trust 2007-NC1 Mortgage
Pass-Through Certificates, Series 2007-NC1, the plaintiff,
and recorded in the Washoe County Recorder's Office as
document number 4133177. ECF No. 86-4.
the borrowers failed to pay HOA assessments that came due,
Highland Ranch, through its attorney Kern & Associates,
Ltd., recorded a Notice of Delinquent Assessment and Claim of
Lien Homeowners Association (document number 4073963) against
the property on January 9, 2012. ECF No. 86-5. On June 27,
2012, the HOA then recorded a Notice of Default and Election
to Sell pursuant to NRS § 116.3116 et seq., in
the Washoe County Recorder's Office as document number
4125742. ECF No. 86-6. A Notice of Homeowners Association
Sale was recorded on February 15, 2013, in the Washoe County
Recorder's Office as document number 4205546. ECF No.
86-7. At the non-judicial foreclosure sale held on March 26,
2013, the HOA purchased the property for $450, and recorded a
Deed in Foreclosure of Assessment Lien on April 8, 2013. ECF
No. 86-8 (document number 4223797). On August 23, 2013, the
HOA recorded a Quit Claim Deed in which Highland Ranch quit
claimed its interest in the property to TBR I, LLC
(“TBR”). ECF No. 86-9 (document number 4272527).
TBR then quit claimed its interest in the property to
Airmotive, recording the Deed on February 29, 2016. ECF No.
86-10 (document number 4565074).
Bank filed its initial Complaint against TBR on August 6,
2015. ECF No. 1. TBR filed an amended answer to the
Complaint, a counterclaim and third-party complaint against
Deutsche Bank, Highland Ranch, and the borrowers, on October
14, 2015. ECF No. 9. After failing to answer, the Clerk of
Court entered Default as to the borrowers, and TBR
voluntarily dismissed them on September 29, 2015. ECF Nos. 29
& 39. On September 30, 2016, Highland Ranch, Deutsche
Bank and TBR stipulated to dismiss TBR from the suit and
dismiss TBR's counterclaim and third-party complaint. ECF
No. 40 & 41. Deutsche Bank then filed its first amended
complaint which added Airmotive as a defendant (ECF No. 42),
and filed its second amended complaint on July 18, 2018,
which added Highland Ranch as a defendant (ECF No. 59). After
reaching an agreement as to the issues raised by Highland
Ranch in an initial motion for partial summary judgment (ECF
No. 66), the parties stipulated to a withdrawal of the motion
and to allow Deutsche Bank to file a third amended complaint
(ECF Nos. 82 & 83), which it did on May 20, 2019 (ECF No.
86). Plaintiff's third amended complaint alleges three
causes of action for quiet title and declaratory relief.
ECF Nos. 86.
Bank filed its pending motion for summary judgment arguing
that the court is bound by Bourne Valley (ECF No.
88); defendants Highland Ranch and Airmotive filed counter
motions for summary judgment arguing that Bourne
Valley is no longer binding on the court following the
Nevada Supreme Court's ruling in Star Hill (ECF
Nos. 90 & 92). The court now rules on all pending
for Summary Judgment Pursuant to Civil Procedure Rule
judgment is appropriate only when the pleadings, depositions,
answers to interrogatories, affidavits or declarations,
stipulations, admissions, and other materials in the record
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). In assessing a
motion for summary judgment, the evidence, together with all
inferences that can reasonably be drawn therefrom, must be
read in the light most favorable to the party opposing the
motion. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); County of Tuolumne
v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir.
moving party bears the initial burden of informing the court
of the basis for its motion, along with evidence showing the
absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). On those
issues for which it bears the burden of proof, the moving
party must make a showing that is “sufficient for the
court to hold that no reasonable trier of fact could find
other than for the moving party.” Calderone v.
United States, 799 F.2d 254, 259 (6th Cir. 1986)
(quoting W. Schwarzer, Summary Judgment Under the Federal