Simon v. Benchmark Association Services, Inc. et al

Filing 11

ORDER Denying 8 Motion for Summary Judgment. Signed by Judge Jennifer A. Dorsey on 9/12/2014. (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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Jon J. Simon,

Case No.: 2:12-cv-2067-JAD-VCF
Plaintiff,
v.

Order Denying Defendant Alessi &
Koenig’s Motion for Summary
Judgment [Doc. 8]

Benchmark Association Services, Inc., et al.,
Defendants.

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This action arises out of the non-judicial foreclosure proceedings initiated against Pro se

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Plaintiff Jon J. Simon’s home after he failed to pay his HOA assessments. Simon alleges that

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Defendants Benchmark Services Association and the law firm of Alessi & Koening, LLC’s October

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23, 2012, Notice of Trustee’s non-judicial foreclosure on his home violated § 1692g of the Fair Debt

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Collection Practices Act (FDCPA). Doc. 1. Alessi & Koenig moves for summary judgment,

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arguing that its notice of sale is governed by the less stringent § 1692f(6) because it was not an

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initial communication or a debt-collection letter, rather, it was sent to enforce the HOA’s secured

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interest in Simon’s home. See Doc. 8. Simon failed to oppose the motion. Although I agree that

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Alessi & Koenig’s notice is subject to § 1692f(6), not § 1692(g), the firm has not demonstrated the

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absence of a genuine issue of fact as to its compliance with that provision, and I deny the motion.

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Background
Simon alleges that he owns a home at 1265 Vietti Street, Henderson, Nevada, 89102. Doc. 1

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at 1. The property is governed by a Declaration of Covenants, Conditions, and Restrictions and

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Reservation of Easements for Terrazzo II (“CC&Rs”), recorded against Simon’s property and which

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obligates him to pay assessments and is enforced by his HOA. Docs. 8 at 3; 8-1 at 2. Simon failed

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to pay his assessments and the HOA liened his property. Docs. 8 at 3; 8-1 at 13-15. After various

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notices, on October 23, 2012, Alessi & Koening mailed Simon and his wife Vanessa a Notice of
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Trustee’s Sale, indicating that a sale of Simon’s property would occur on December 5, 2012. Doc.

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8-2 at 2.

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Simon filed this FDCPA lawsuit on December 4, 2012. Doc. 1 at 3. Simon alleges that

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defendants’ communications were “an attempt to collect this debt.” Doc. 1 at 3. Simon claims that

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Alessi & Koenig’s October 23, 2012, Notice of Trustee’s Sale violated 15 U.S.C. § 1692f(1), as the

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letter attempted to collect fees “expressly authorized by the CC&R’s or other agreement.” Id.

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Simon claims that the Defendants “misrepresented” themselves when they issued the “Notice of

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Default” letter on August 16, 2011. Id. at 5. Simon further alleges that any attempt to collect on a

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debt within the FDCPA’s purview obligates the debt collector to provide a notice under 15 U.S.C. §

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1692g(a), and from using “any false, deceptive, or misleading representation or means in connection

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with the collection of any debt.” Id. at 6. Simon contends that the defendants made no attempt to

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indicate in their notice the specific amounts requested or whether those amounts were authorized

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under either the CC&Rs or Nevada law. Id. at 7. He prays for actual and statutory damages and

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attorneys fees. Id. at 8-9.

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Alessi & Koenig moves for summary judgment on the Declaration of Bradley Bace,

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custodian of records for Alessi & Koenig with respect to the records related to plaintiff’s home.

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Doc. 8 at 13-14. Plaintiff was timely provided with the notice required under Rand v. Rowland, 154

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F.3d 952 (9th Cir. 1998) (en banc), Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), and Klingele v.

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Eikenberry, 849 F.2d 409 (9th Cir. 1988), Doc. 9, but he filed no response to the motion.

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Recognizing that summary judgment may not be granted simply by default, I now evaluate the

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merits of the motion and deny it. Alessi & Koenig has failed to demonstrate that the original notice

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of delinquent assessment1 that started this non-judicial-foreclosure ball rolling was mailed as

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required by NRS 116.31162(1)(a). This evidentiary void precludes me from finding that Alessi &

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Koenig properly acquired the right under NRS 116.31162(1)(a) to enforce the HOA’s lien and was

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therefore acting in compliance with the FDCPA at the time it issued the notice of trustee’s sale.

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Doc. 8-4.
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Discussion
A.

Legal Standard
Summary judgment is appropriate when “the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine

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issue as to any material fact and that the movant is entitled to judgment as a matter of law.”2 When

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considering the propriety of a summary judgment motion, the court views all facts and draws all

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inferences in the light most favorable to the nonmoving party.3 If reasonable minds could differ on

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the material facts at issue, summary judgment is not appropriate because the purpose of summary

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judgment is to avoid unnecessary trials when the facts are undisputed.4

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Once the moving party satisfies Rule 56 by demonstrating the absence of any genuine issue

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of material fact, the burden shifts to the party resisting summary judgment to “set forth specific facts

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showing that there is a genuine issue for trial.”5 “[A]n adverse party may not rest upon the mere

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allegations or denials of the adverse party’s pleading, but . . . must set forth specific facts showing

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that there is a genuine issue for trial.”6 Rule 56(e)(2) states that “[i]f a party fails to properly . . .

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address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the

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fact undisputed for purposes of the motion.”7

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Last year in Heinemann v. Satterberg, the Ninth Circuit clarified that local rules permitting

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courts to treat the lack of an opposition as consent to granting a motion do not apply to summary

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judgment motions.8 When a summary-judgment motion is unopposed, Rule 56 “authorizes the court

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to consider a fact as undisputed,” but it does not permit a court to grant summary judgment by

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See Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (citing Fed. R. Civ. P. 56(c)).

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Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

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Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995); Nw. Motorcycle Ass’n v. U.S. Dep’t of
Agric., 18 F.3d 1468, 1471 (9th Cir. 1994).

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

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Celotex, 477 U.S. at 324.

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Id.

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Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013).

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default.9

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B.

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Analysis of Alessi & Koenig’s Moving Papers
Simon generally alleges that Alessi & Koenig violated the FDCPA in its various

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communications regarding allegedly unpaid HOA fees. See Doc. 1 at ¶¶ 15-32; 33-51. Although he

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focuses his arguments on 15 U.S.C. § 1692g, see Doc. 1 at ¶ 41-42, which requires certain

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disclosures in initial communications by debt collectors, Alessi & Koenig contend that § g does not

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apply to them; rather their communications are governed by the “lighter requirement” of § f(6)

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because they were merely enforcing a valid security interest granted them by NRS Chapter 116.

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Doc. 8. at 6, 11.

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Even if I were to accept Alessi & Koenig’s argument and evaluate the firm’s conduct under

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only 15 U.S.C. § 1692f(6), this movant has failed to demonstrate its entitlement to summary

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judgment. Under § 1692f, a party may not “(6) Tak[e] or threaten[] to take any nonjudicial action to

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effect dispossession or disablement of property if— (A) there is no present right to possession of the

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property claimed as collateral through an enforceable security interest . . . .”10

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Alessi & Koenig argues that its enforceable security interest arises from the CC&Rs11 and

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Nevada law, which give HOAs the right to foreclose on assessment liens “after the issuance of three

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documents: a notice of delinquent assessment; a notice of default; and a notice of sale.” Doc. 8 at

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10. As the quoted portions of NRS 116.31162 provided by Alessi & Koenig demonstrate, Nevada

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law requires these notices to be “mailed by certified or registered mail, return receipt requested.”12

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Alessi & Koenig has demonstrated that it mailed the notice of default and notice of sale via

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registered mail, see Docs. 8-2 & 8-3, but the proof of registered mailing is missing for the June 24,

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Id. (citing Fed. R. Civ. P. 56 Advisory Committee Notes (2010)); Fed. R. Civ. P. 56(e)(2)-(3).
15 U.S.C. § 1692f.

Defendants request judicial notice of the CC&Rs, which were recorded in the Clark County Recorder’s
Office. Doc. 8 at 15; 8-1. Under Federal Rule of Evidence 201(b), “[t]he Court may take judicially notice a fact
that is not subject to reasonable dispute because it . . . (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Id. The CC&Rs are public records for which the Court can
take judicial notice, whose authenticity is uncontested. I take judicial notice of these documents.
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Id. (quoting Nev. Rev. Stat. § 116.31162(1)).

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2011, notice of delinquent assessment. See Doc. 8-4. The only communications that plaintiff

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references in his complaint allegedly occurred on May 25, 2012, and October 23, 2012, so nothing in

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the plaintiff’s complaint would permit me to even infer his receipt of this June 24, 2011, notice. See

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Doc. 1. Without this demonstration, I am left with a question of fact whether Alessi & Koenig

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legally acquired an enforceable security interest in Simon’s property that the firm was enforcing

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when it issued the notice of trustee’s sale.

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Conclusion
Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment
[Doc. 8] is DENIED.
September 12, 2014.

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_________________________________
JENNIFER A. DORSEY
UNITED STATES DISTRICT JUDGE

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