Mortgage Fund IVC Trust 2016-RN5 v. Brown et al

Filing 87

ORDER Granting 64 Motion for Summary Judgment and Denying as moot 69 MOTION for FRCP 54(b) Determination. Signed by Judge Kent J. Dawson on 1/19/2021. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:17-cv-02309-KJD-BNW Document 87 Filed 01/21/21 Page 1 of 4

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

MORTGAGE FUND IVC TRUST 2016-RN5,

8
9
10

Plaintiff,

13

ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT

v.
DEWEY D. BROWN, et al.,

11
12

Case No. 2:17-cv-2309-KJD-BNW

Defendants.
Before the Court is Plaintiff’s Motion for Summary Judgment (#64). Defendant
responded in opposition (#71) to which Plaintiff replied (#75).

14

I.

15

In 2008 Defendants Dewey and Lillian Brown purchased the property located at 2175

Factual and Procedural Background

16

Clearwater Lake Drive in the Las Vegas valley. (#45, at 2). The Browns fell behind on their

17

monthly Homeowners’ Association (“HOA”) assessments and the HOA began foreclosure

18

proceedings. Id. The HOA, through Red Rock Financial Services (“Red Rock”), recorded a lien

19

for Delinquent Assessments against the property. Id. Red Rock sent a letter to the interested

20

party, indicating there would be a foreclosure sale and that the “Association’s lien for Delinquent

21

Assessments is Junior only to the Senior Lender/Mortgage Holder.” Id. at 3. The owners did not

22

pay the outstanding balance and Defendant Saticoy Bay purchased the home at the foreclosure

23

sale for $45,100. Id. at 2. Saticoy Bay believed it purchased the property free and clear while

24

Plaintiff claimed the property was still encumbered by its own deed of trust. Id. at 3. Plaintiff

25

brought this suit seeking a declaration that its deed of trust still encumbered the property. Id.

26

On September 24, 2019, this Court granted Plaintiff’s motion for summary judgment

27

seeking a declaratory judgment that its deed of trust survived the HOA’s foreclosure, finding that

28

the letter sent to the owner constituted fraud, unfairness, or oppression that rendered equitable

Case 2:17-cv-02309-KJD-BNW Document 87 Filed 01/21/21 Page 2 of 4

1

unwinding of the foreclosure sale appropriate. Id. at 1. Additionally, the Court found the sales

2

price proved to be grossly inadequate. Id. at 10. Six months later, on March 26, 2020, Defendants

3

brought a motion to reconsider. The Court denied that motion. Now before the Court is

4

Plaintiff’s motion for summary judgment regarding judicial foreclosure, its final claim.

5

II.

Legal Standard

6

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

7

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

8

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

9

matter of law. See FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

10

(1986). The moving party bears the initial burden of showing the absence of a genuine issue of

11

material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to

12

set forth specific facts demonstrating a genuine factual issue for trial. See Matsushita Elec.

13

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

14

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

15

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

16

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

17

affidavit or other evidentiary materials as provided by Rule 56(e), showing there is a genuine

18

issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “Where evidence

19

is genuinely disputed on a particular issue—such as by conflicting testimony—that ‘issue is

20

inappropriate for resolution on summary judgment.’” Zetwick v. Cnty. of Yolo, 850 F.3d 436,

21

441 (9th Cir. 2017) (quoting Direct Techs., LLC v. Elec. Arts, Inc., 836 F.3d 1059, 1067 (9th

22

Cir. 2016)).

23

III.

Analysis

24

Plaintiff argues that it is entitled to enforce its deed of trust on the property. Plaintiff

25

seeks a judicial foreclosure in the amount owed so the property may be sold with the proceeds

26

being used to pay down the debt owed to Plaintiff. Defendant Saticoy Bay responded in

27

opposition to the motion. However, Defendant did not address any of Plaintiff’s arguments.

28

Defendant’s argument against summary judgment is that Defendant has filed a pending motion

-2-

Case 2:17-cv-02309-KJD-BNW Document 87 Filed 01/21/21 Page 3 of 4

1

seeking a Rule 54(b) determination that would permit Defendant’s appeal of this Court’s

2

previous order to proceed. Defendant argues that it is likely to prevail on appeal and that this

3

Court should stay the proceedings until the appeal is complete. However, Defendant does not

4

provide the Court with any analysis regarding this type of stay or why it is likely to prevail on

5

appeal. As such, the Court interprets Defendant’s failure to respond to Plaintiff’s arguments as an

6

admission of the motion’s merit and as consent to granting the motion. King v. Cartlidge, 124

7

P.3d 1161, 1162 (Nev. 2005) (stating that district courts have discretion to consider the failure to

8

oppose a motion as an admission of merit and as consent to grant the motion). The Court also

9

considers Defendant’s failure to respond as an admission that there are no genuine issues of

10

material fact.
“To recover a debt secured by real property in Nevada, a creditor must seek to recover on

11
12

the property through judicial foreclosure before recovering from the debtor personally.”

13

McDonald v. D.P. Alexander & Las Vegas Blvd., LLC, 123 P.3d 748, 750 (Nev. 2005). The

14

parties do not dispute that Plaintiff is the current assignee of the of deed of trust. As such,

15

Plaintiff is entitled to enforce the deed of trust. As the note holder and possessor, Plaintiff is also

16

permitted to enforce the note. The Browns have failed to make the requisite payments to satisfy

17

the debt and Plaintiff is entitled to foreclosure to collect the money it is owed. As such, the Court

18

grants Plaintiff’s motion for summary judgment regarding judicial foreclosure. The proceeds of

19

the sale will be used to satisfy the debt owed to Plaintiff.

20

Defendant Saticoy Bay also seeks a Rule 54(b) determination regarding the Court’s

21

previous summary judgment ruling. (#69). Such a determination would allow Defendant to

22

appeal that ruling while the surviving claims remained unresolved. However, with the Court’s

23

granting of summary judgment on this, the final claim, Defendant’s motion is moot. The case is

24

now completely resolved and ripe for appeal.

25

//

26

//

27

//

28

//

-3-

Case 2:17-cv-02309-KJD-BNW Document 87 Filed 01/21/21 Page 4 of 4

1

IV.

2

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment

3
4

Conclusion

(#64) is GRANTED.
IT IS FURTHER ORDERED that Defendant’s Motion for FRCP 54(b) Determination

5

(#69) is DENIED as moot.

6

Dated this 19th day of January, 2021.

7
8
9

_____________________________
Kent J. Dawson
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-