Ellis et al
Filing
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ORDER denying 91 Motion for Summary Judgment; granting 113 Motion for Settlement Conference. This matter is referred to the Honorable Robert A. McQuaid, Jr. for the purpose of conducting a settlement conference. Signed by Judge Larry R. Hicks on 11/28/12. (Copies have been distributed pursuant to the NEF - JC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MELINDA ELLIS,
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Plaintiff,
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v.
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ALESSI TRUSTEE CORPORATION; et al.,
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Defendants.
3:09-CV-0428-LRH-RAM
ORDER
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Before the court is defendants/counter-claimants Alessi Trustee Corporation (“ATC”) and
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Alessi & Koenig, LLC’s (“Koenig”) motion for summary judgment. Doc. #91.1 Plaintiff Melinda
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Ellis (“Ellis”) filed an opposition (Doc. #112) to which defendants replied (Doc. #114).
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I.
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Facts and Background
In January 2000, plaintiff Ellis purchased real property in the Arrowcreek subdivision of
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Washoe County, Nevada. In December 2000, Ellis purchased another property in the same
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subdivision. Both properties were subject to recorded Covenants, Conditions, and Restrictions
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(“CC&Rs”) which include the collection of homeowner’s association dues for the care and
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maintenance of the subdivision.
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In 2003, defendant Alessi Trustee Corporation (“ATC”) was formed as a separate and
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Refers to the court’s docket number.
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distinct entity from defendant Alessi & Koenig, LLC (“Koenig”). ATC was formed to perform non-
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judicial foreclosure work in Nevada on behalf of homeowner’s associations like Arrowcreek.
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In early 2008, Ellis defaulted on her homeowner’s association obligations for both
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properties. In response, ATC initiated non-judicial foreclosure proceedings on Ellis’ properties on
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behalf of Arrowcreek.
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On July 15, 2009, underlying plaintiff Melinda Ellis (“Ellis”) filed a complaint against ATC
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and Koenig alleging that defendants, acting as a collection agency for a homeowner’s association,
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violated the Fair Debt Collection Practices Act. Defendants counterclaimed for payment of the
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association dues. Doc. #6. Thereafter, defendants filed the present motion for summary judgment.
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Doc. #91.
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II.
Legal Standard
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Summary judgment is appropriate only when the pleadings, depositions, answers to
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interrogatories, affidavits or declarations, stipulations, admissions, and other materials in the record
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show that “there is no genuine issue as to any material fact and the movant is entitled to judgment
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as a matter of law.” Fed. R. Civ. P. 56(a). In assessing a motion for summary judgment, the
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evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the
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light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio
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Corp., 475 U.S. 574, 587 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154
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(9th Cir. 2001).
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The moving party bears the initial burden of informing the court of the basis for its motion,
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along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v.
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Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the
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moving party must make a showing that is “sufficient for the court to hold that no reasonable trier
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of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259
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(6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001).
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To successfully rebut a motion for summary judgment, the non-moving party must point to
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facts supported by the record which demonstrate a genuine issue of material fact. Reese v.
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Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might
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affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 248 (1986). Where reasonable minds could differ on the material facts at issue, summary
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judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute
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regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could
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return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a
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scintilla of evidence in support of the party’s position is insufficient to establish a genuine dispute;
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there must be evidence on which a jury could reasonably find for the party. See id. at 252.
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III.
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Discussion
Defendants argue that the court should enter judgment in their favor because it is
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undisputed that Ellis defaulted on her homeowner’s association obligations. See Doc. #91.
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Although it is undisputed that Ellis owes over $10,000 for the association dues between both
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properties, the court finds that there is a disputed issue of material fact as to whether ATC had
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authority to attempt to collect the association debt and initiate non-judicial foreclosure proceedings,
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which precludes summary judgment.
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In September 2008, after ATC initiated non-judicial foreclosure proceedings against Ellis,
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the State of Nevada Department of Business and Industry’s Financial Institutions Division (“FID”)
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commissioner, Stephen Kondrup (“Kondrup”), issued a cease and desist letter to ATC finding that
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ATC was a community manager under NRS 649.020(3)(a), and thus, was subject to state licensing.
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Because ATC was not licensed as a debt collection agency, commissioner Kondrup mandated that
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ATC immediately stop all debt collection activities. Thus, viewing the evidence in the light most
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favorable to Ellis as the non-moving party, defendants were not authorized to collect the
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homeowner’s association dues owed by Ellis or to initiate the non-judicial foreclosure proceedings
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on Arrowcreek’s behalf. Therefore, the court finds that there are disputed issues of material fact
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precluding summary judgment and shall deny defendants’ motion accordingly.
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IT IS THEREFORE ORDERED that defendants’ motion for summary judgment (Doc. #91)
is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for a settlement conference
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(Doc. #113) is GRANTED. This matter is REFERRED to the Honorable Robert A. McQuaid, Jr.
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for the purpose of conducting a settlement conference.
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IT IS SO ORDERED.
DATED this 28th day of November, 2012.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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