Bank of America, N.A. v. Solera at Stallion Mountain Unit Owners' Association et al

Filing 50

ORDER that 30 BANA's Motion for Summary Judgment is GRANTED pursuant to the foregoing. FURTHER ORDERED that 31 NV Eagles' Motion for Summary Judgment is DENIED. FURTHER ORDERED that BANA's claims against CSC are DISMISSED with prejudice. The Clerk of Court is ordered to close the case. Signed by Chief Judge Gloria M. Navarro on 8/17/17. (Copies have been distributed pursuant to the NEF - MMM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 BANK OF AMERICA, N.A., 4 5 6 7 8 9 ) ) Plaintiff, ) vs. ) ) SOLERA AT STALLION MOUNTAIN UNIT ) OWNERS’ ASSOCIATION, et al., ) ) Defendants. ) ) Case No.: 2:16-cv-00286-GMN-GWF ORDER Pending before the Court is the Motion for Summary Judgment, (ECF No. 30), filed by 10 11 Plaintiff Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP f/k/a 12 Countrywide Home Loans Servicing, LP (“BANA”). Defendants NV Eagles, LLC (“NV 13 Eagles”) and Solera at Stallion Mountain Unit Owners’ Association (“HOA”) (collectively 14 “Defendants”) filed Responses, (see ECF No. 35, 36), to which BANA filed Replies, (see ECF 15 Nos. 40, 41). Also pending before the Court is NV Eagles’ Motion for Summary Judgment, (ECF No. 16 17 31), to which HOA joins, (ECF No. 31). BANA filed a Response, (ECF No. 33), and HOA 18 filed a Reply, (ECF No. 39). For the reasons discussed below, the Court GRANTS BANA’s 19 Motion and DENIES HOA’s Motion. 20 I. BACKGROUND 21 BANA filed its Complaint on February 12, 2016, asserting claims involving the non- 22 judicial foreclosure on real property located at 6061 Fox Creek Avenue, Las Vegas, Nevada 23 (the “Property”). (Compl. ¶ 8, ECF No. 1). On September 22, 2005, non-party Catherine T. 24 Samoska purchased the Property by way of a loan in the amount of $283,386.00 secured by a 25 Deed of Trust (“DOT”) recorded August 27, 2007. (Id. ¶ 14). Page 1 of 7 1 On November 1, 2010, HOA, through its agent Nevada Association Services, Inc. 2 (“NAS”), recorded a notice of delinquent assessment lien. (Id. ¶ 16). On December 1, 2010, 3 HOA recorded a notice of default and election to sell to satisfy the delinquent assessment lien. 4 (Id. ¶ 18). Although BANA requested the super-priority amount HOA alleged was due, HOA 5 did not provide this amount. (Id. ¶ 25). Nevertheless, BANA tendered what it calculated as the 6 super-priority amount to HOA through NAS on October 20, 2011. (Id. ¶ 27). On August 22, 7 2011, HOA recorded a notice of trustee’s sale. (Id. ¶ 18). On April 19, 2013, Underwood 8 Partners, LLC, purchased the Property at the foreclosure sale pursuant to NRS § 116.1113. (Id. 9 ¶ 28). Underwood subsequently transferred its interest in the Property to NV Eagles. (Id. ¶ 30). 10 BANA asserts the following causes of action against various parties involved in the 11 foreclosure and subsequent sales of the Property: (1) quiet title with a requested remedy of 12 declaratory judgment; (2) breach of Nevada Revised Statute (“NRS”) 116.1113; (3) wrongful 13 foreclosure; (4) injunctive relief. (Id.). 14 II. 15 LEGAL STANDARD The Federal Rules of Civil Procedure provide for summary adjudication when the 16 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 17 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 18 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that 19 may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 20 A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to 21 return a verdict for the nonmoving party. Id. “Summary judgment is inappropriate if 22 reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict 23 in the nonmoving party’s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th 24 Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A 25 Page 2 of 7 1 principal purpose of summary judgment is “to isolate and dispose of factually unsupported 2 claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 3 In determining summary judgment, a court applies a burden-shifting analysis. “When 4 the party moving for summary judgment would bear the burden of proof at trial, it must come 5 forward with evidence which would entitle it to a directed verdict if the evidence went 6 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 7 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 8 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In 9 contrast, when the nonmoving party bears the burden of proving the claim or defense, the 10 moving party can meet its burden in two ways: (1) by presenting evidence to negate an 11 essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving 12 party failed to make a showing sufficient to establish an element essential to that party’s case 13 on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 323–24. If 14 the moving party fails to meet its initial burden, summary judgment must be denied and the 15 court need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S. 16 144, 159–60 (1970). 17 If the moving party satisfies its initial burden, the burden then shifts to the opposing 18 party to establish that a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. 19 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 20 the opposing party need not establish a material issue of fact conclusively in its favor. It is 21 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 22 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 23 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid 24 summary judgment by relying solely on conclusory allegations that are unsupported by factual 25 data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go Page 3 of 7 1 beyond the assertions and allegations of the pleadings and set forth specific facts by producing 2 competent evidence that shows a genuine issue for trial. Celotex Corp., 477 U.S. at 324. 3 At summary judgment, a court’s function is not to weigh the evidence and determine the 4 truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The 5 evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in 6 his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not 7 significantly probative, summary judgment may be granted. Id. at 249–50. 8 II. DISCUSSION 9 BANA asserts claims against Defendants for quiet title, violation of NRS § 116.1113, 10 wrongful foreclosure, and injunctive relief. The Court first considers the impact of the Ninth 11 Circuit’s ruling in Bourne Valley Court Trust v. Wells Fargo Bank, NA, 832 F.3d 1154 (9th Cir. 12 2016), cert. denied, No. 16-1208, 2017 WL 1300223 (U.S. June 26, 2017), before turning to 13 BANA’s individual claims. 14 A. 15 In Bourne Valley, the Ninth Circuit held that NRS § 116.3116’s “‘opt-in’ notice scheme, The Scope and Effect of Bourne Valley 16 which required a homeowners’ association to alert a mortgage lender that it intended to 17 foreclose only if the lender had affirmatively requested notice, facially violated the lender’s 18 constitutional due process rights under the Fourteenth Amendment to the Federal Constitution.” 19 Bourne Valley, 832 F.3d at 1156. Specifically, the Court of Appeals found that by enacting the 20 statute, the legislature acted to adversely affect the property interests of mortgage lenders, and 21 was thus required to provide “notice reasonably calculated, under all circumstances, to apprise 22 interested parties of the pendency of the action and afford them an opportunity to present their 23 objections.” Id. at 1159. The statute’s opt-in notice provisions therefore violated the Fourteenth 24 Amendment’s Due Process Clause because they impermissibly “shifted the burden of ensuring 25 adequate notice from the foreclosing homeowners’ association to a mortgage lender.” Id. Page 4 of 7 1 The necessary implication of the Ninth Circuit’s opinion in Bourne Valley is that the 2 petitioner succeeded in showing that no set of circumstances exists under which the opt-in 3 notice provisions of NRS § 116.3116 would pass constitutional muster. See, e.g., United States 4 v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the 5 most difficult challenge to mount successfully, since the challenger must establish that no set of 6 circumstances exists under which the Act would be valid.”); William Jefferson & Co. v. Bd. of 7 Assessment & Appeals No. 3 ex rel. Orange Cty., 695 F.3d 960, 963 (9th Cir. 2012) (applying 8 Salerno to facial procedural due process challenge under the Fourteenth Amendment). The fact 9 that a statute “might operate unconstitutionally under some conceivable set of circumstances is 10 insufficient to render it wholly invalid.” Salerno, 481 U.S. at 745. To put it slightly differently, 11 if there were any conceivable set of circumstances where the application of a statute would not 12 violate the constitution, then a facial challenge to the statute would necessarily fail. See, e.g., 13 United States v. Inzunza, 638 F.3d 1006, 1019 (9th Cir. 2011) (holding that a facial challenge to 14 a statute necessarily fails if an as-applied challenge has failed because the plaintiff must 15 “establish that no set of circumstances exists under which the [statute] would be valid”). 16 Here, the Ninth Circuit expressly invalidated the “opt-in notice scheme” of NRS 17 § 116.3116, which it pinpointed in NRS 116.3116(2). Bourne Valley, 832 F.3d at 1158. In 18 addition, this Court understands Bourne Valley also to invalidate NRS 116.311635(1)(b)(2), 19 which also provides for opt-in notice to interested third parties. According to the Ninth Circuit, 20 therefore, these provisions are unconstitutional in each and every application; no conceivable 21 set of circumstances exists under which the provisions would be valid. The factual 22 particularities surrounding the foreclosure notices in this case—which would be of paramount 23 importance in an as-applied challenge—cannot save the facially unconstitutional statutory 24 provisions. In fact, it bears noting that in Bourne Valley, the Ninth Circuit indicated that the 25 petitioner had not shown that it did not receive notice of the impending foreclosure sale. Thus, Page 5 of 7 1 the Ninth Circuit declared the statute’s provisions facially unconstitutional notwithstanding the 2 possibility that the petitioner may have had actual notice of the sale. 3 HOA also argues that NRS § 107.090, which “requires that copies of the notice of 4 default and election to sell, and the notice of sale be mailed to each ‘person with an interest or 5 claimed interest’ that is ‘subordinate’ to the HOA’s super-priority,” is “incorporated into NRS 6 Chapter 116 by NRS 116.31168.” (HOA’s MSJ 8:18–26, ECF No. 32). However, Bourne 7 Valley expressly rejected this argument. Bourne Valley, 832 F.3d at 1159 (“If section 8 116.31168(1)’s incorporation of section 107.090 were to have required homeowners’ 9 associations to provide notice of default to mortgage lenders even absent a request, section 10 11 116.31163 and section 116.31165 would have been meaningless.”). Accordingly, the HOA foreclosed under a facially unconstitutional notice scheme, and 12 thus the HOA foreclosure cannot have extinguished the DOT. Therefore, the Court must quiet 13 title as a matter of law in favor of Plaintiff as assignee of the DOT. 14 15 16 B. Plaintiff’s Remaining Claims for Violation of NRS § 116.1113, Wrongful Foreclosure, and Injunctive Relief In its prayer for relief, BANA requests primarily a declaration that CSC and the 17 Martinez-Avilezes purchased the Property subject to its DOT. (See Compl. 14:24–25). The 18 other relief requested—with the exception of the injunctive relief—is phrased in the alternative. 19 (See id. 14:26–15:3). Therefore, because the Court grants summary judgment for BANA on its 20 quiet title claim, BANA has received the relief it requested. Accordingly, the Court dismisses 21 BANA’s second and third causes of action as moot. 22 With regard to BANA’s request for a preliminary injunction pending a determination by 23 the Court concerning the parties’ respective rights and interests, the Court’s grant of summary 24 judgment for BANA moots this claim, and it is therefore dismissed. 25 Page 6 of 7 1 2 3 4 5 6 7 III. CONCLUSION IT IS HEREBY ORDERED that BANA’s Motion for Summary Judgment, (ECF No. 30), is GRANTED pursuant to the foregoing. IT IS FURTHER ORDERED that NV Eagles’ Motion for Summary Judgment, (ECF No. 31), is DENIED. IT IS FURTHER ORDERED that BANA’s claims against CSC are DISMISSED with prejudice. 8 The Clerk of Court is ordered to close the case. 9 DATED this _____ day of August, 2017. 17 10 11 12 ___________________________________ 13 Gloria M. Navarro, Chief Judge United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 Page 7 of 7

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