Taddeo v. American

Filing 844

ORDER Denying 704 Motion for Summary Judgment. Signed by Judge Kent J. Dawson on 9/14/2011. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FRANK TADDEO, et al.,

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Plaintiffs,

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v.

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Case No. 2:08-CV-01463-KJD-RJJ

AMERICAN INVSCO CORPORATION,
et al.,

ORDER

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Defendants.
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Before the Court is Frank and Amelia Taddeo’s Motion for Summary Judgment (#704)
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against Defendant Koval-Flamingo, LLC (“Koval”). Koval filed an opposition (#744) and the
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Taddoes filed a reply (#752).
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I. Background
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On or about October 6, 2006, Plaintiffs Frank and Amelia Taddeo purchased a condominium
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unit at the Meridian Luxury Condominiums. As part of the sales transaction, Koval rented back the
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Taddeos’ unit at a rent of $4,000 per month plus Homeowners Association dues per month of
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$407.00 and real property taxes in the amount of $682.00 per month. The lease of the property ran
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from the date of purchase to October 31, 2009. According to the Taddeos, they never received a copy
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of the lease and received rental payments from various entities including Koval, Condominium
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Rental Services (“CRS”), Meridian Condominium Rental Services, Inc. (“MCRSI”). The Taddoes

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did not receive rent from July 1, 2008 to the end of the lease.

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The Taddoes now claim that, under the terms of the agreement, they are entitled to a total of

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$84,739.00 plus interest and attorneys’ fees which constitutes 17 months of rent, taxes, HOA fees,

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and eviction expenses, offset against rent collected by the Taddeos during that period.

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II. Discussion

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A. Legal Standard for Summary Judgment

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Summary judgment may be granted if the pleadings, depositions, answers to interrogatories,

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and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any

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material fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ.

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P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the

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initial burden of showing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at

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323. The burden then shifts to the nonmoving party to set forth specific facts demonstrating a

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genuine factual issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986); Fed. R. Civ. P. 56(e).

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All justifiable inferences must be viewed in the light must favorable to the nonmoving party.

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See Matsushita, 475 U.S. at 587. However, the nonmoving party may not rest upon the mere

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allegations or denials of his or her pleadings, but he or she must produce specific facts, by affidavit

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or other evidentiary materials provided by Rule 56(e), showing there is a genuine issue for trial. See

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve factual

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issues of controversy in favor of the non-moving party where the facts specifically averred by that

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party contradict facts specifically averred by the movant. See Lujan v. Nat’l Wildlife Fed’n, 497

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U.S. 871, 888 (1990); see also Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345

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(9th Cir. 1995) (stating that conclusory or speculative testimony is insufficient to raise a genuine

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issue of fact to defeat summary judgment). “[U]ncorroborated and self-serving testimony,” without

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more, will not create a “genuine issue” of material fact precluding summary judgment. Villiarimo v.

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Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).

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Summary judgment shall be entered “against a party who fails to make a showing sufficient

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to establish the existence of an element essential to that party’s case, and on which that party will

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bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Summary judgment shall not be granted

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if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248.

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B. Lease Between Taddeos and Koval

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Koval claims that the Taddeos have not met their burden to show an absence of disputed

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material facts because the Taddeos have not proffered a copy of a lease between Koval and the

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Taddeos obligating Koval to pay rent. In response, the Taddeos point to paragraph 5.9 in the

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Purchase Agreement which states that Koval transferred title subject to an existing lease. Koval

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contends that the lease referenced in the Purchase Agreement is with Koval as lessor and a third

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party, Travilliant, as lessee. According to Koval, Travilliant is the only party obligated to pay rent on

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the unit.

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The Taddeos have not satisfied this Court that there is no issue of fact remaining on this

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critical issue. The plain language of the agreement does not show any obligation by Koval to pay

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rent under the lease. Whether Koval ever agreed to pay the Taddeos rent for the unit is an issue

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material fact disputed by the parties. Accordingly, summary judgment is precluded.

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C. Real Party in Interest

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Fed R. of Civ. P 17(a)(1) requires that “[a]n action must be prosecuted in the name of the real

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party in interest.” This rule “is designed to ensure that lawsuits are brought in the name of the party

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possessing the substantive right at issue.” Klamath-Lake Pharmaceutical Ass'n v. Klamath Medical

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Service Bureau, 701 F.2d 1276, 1282 (9th Cir.1983).

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The Taddeos claim that they are entitled to an order granting summary judgment for the rents

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they seek. Koval argues that the Taddeos assigned their rights to collect any rents due to a third

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party. As evidence, Koval submits an Assignment of Rents provision in a Family Rider supplement
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to the mortgage on the property between Taylor, Bean & Whitaker Mortgage Corp. and the Taddeos.

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Koval argues that this creates an issue of fact about whether the Taddeos are the real party in interest

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and entitled to the rents allegedly due. The Taddoes argue that this provision is triggered only when

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a notice of default has been issued. However, the plain language of the Family Rider does not

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support that assertion. Whether or not the Taddeos are entitled to the rent they seek is a material fact

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which is disputed by the parties. The evidence presented by Koval is sufficient to defeat summary

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judgment because whether or not the Taddeos have substantive right to the rent they are seeking is a

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genuine issue of fact for trial.

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III. Conclusion

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Accordingly, IT IS HEREBY ORDERED that the Taddeos’ Motion for Summary Judgment
(#704) against Defendant Koval is DENIED.
DATED this14th day of September 2011.

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_____________________________
Kent J. Dawson
United States District Judge

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