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Deustche Bank National Trust Co. v. Airmotive Investments, LLC

United States District Court, D. Nevada

January 14, 2020

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,
v.
AIRMOTIVE INVESTMENTS, LLC, a Nevada Limited Liability Company, HIGHLAND RANCH HOMEOWNERS ASSOCIATION, a Nevada non-profit corporation, Defendants.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         There 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).

         Second, 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).

         In 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 granted.

         I. BACKGROUND

         This 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).

         On 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.

         After 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).[1]

         Deutsche 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[2] for quiet title and declaratory relief. ECF Nos. 86.

         Deutsche 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 motions.

         II. LEGAL STANDARD

         Motion for Summary Judgment Pursuant to Civil Procedure Rule 56

         Summary 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. 2001).

         The 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 ...


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