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Branch Banking & Trust Co. v. Windhaven & Tollway, LLC

Supreme Court of Nevada

April 30, 2015

BRANCH BANKING AND TRUST COMPANY, A NORTH CAROLINA BANKING CORPORATION, Appellant,
v.
WINDHAVEN & TOLLWAY, LLC, A NEVADA LIMITED LIABILITY COMPANY; STANLEY H. WASSERKRUG, AN INDIVIDUAL; SUSAN S. WASSERKRUG, AN INDIVIDUAL; STANLEY HOWARD WASSERKRUG AND SUSAN SCHWARTZ WASSERKRUG, AS TRUSTEES OF THE WASSERKRUG FAMILY TRUST DATED NOVEMBER 13, 2003; KEITH K. LYON, AN INDIVIDUAL; KEITH K. LYON, AS TRUSTEE OF THE KEITH K. LYON LIVING TRUST, DATED OCTOBER 2003; STACY M. RUSH, AN INDIVIDUAL; ADRIENNE J. RUSH, INDIVIDUAL; STACY M. RUSH AND ADRIENNE J. RUSH, AS TRUSTEES OF THE STACY AND ADRIENNE RUSH FAMILY TRUST DATED MARCH 22, 1993; THOMAS B. ACEVEDO, AN INDIVIDUAL; AND GREENSTREET PROPERTIES, LLC, NEVADA LIMITED LIABILITY COMPANY, Respondents. BRANCH BANKING AND TRUST COMPANY, Appellant,
v.
WINDHAVEN & TOLLWAY, LLC, A NEVADA LIMITED LIABILITY COMPANY; STANLEY H. WASSERKRUG, AN INDIVIDUAL; SUSAN S. WASSERKRUG, AN INDIVIDUAL; STANLEY HOWARD WASSERKRUG AND SUSAN SCHWARTZ WASSERKRUG, AS TRUSTEES OF THE WASSERKRUG FAMILY TRUST DATED NOVEMBER 13, 2003; KEITH K. LYON, AN INDIVIDUAL; KEITH K. LYON, AS TRUSTEE OF THE KEITH K. LYON LIVING TRUST, DATED OCTOBER 29, 2003, A TRUST; STACY M. RUSH, AN INDIVIDUAL; ADRIENNE J. RUSH, AN INDIVIDUAL; STACY M. RUSH AND ADRIENNE J. RUSH, AS TRUSTEES OF THE STACY AND ADRIENNE RUSH FAMILY TRUST DATED MARCH 22, 1993; THOMAS B. ACEVEDO, AN INDIVIDUAL; AND GREENSTREET PROPERTIES, LLC, A NEVADA LIMITED LIABILITY COMPANY, Respondents

As Corrected July 21, 2015.

Consolidated appeals from a district court summary judgment in a deficiency action and from a post-judgment district court order awarding attorney fees and costs. Eighth Judicial District Court, Clark County; Linda Marie Bell, Judge.

Holland & Hart, LLP, and Frank Z. LaForge and Jeremy J. Nork, Reno, for Appellant.

Bogatz Law Group and I. Scott Bogatz, Charles M. Vlasic, III, and YanXiong Li, Las Vegas, for Respondents Windhaven & Tollway, LLC; Stanley H. Wasserkrug; Susan S. Wasserkrug; Keith K. Lyon; Stacy M. Rush; Adrienne J. Rush; and Greenstreet Properties, LLC.

Law Offices of John M. Netzorg and John M. Netzorg, Las Vegas, for Respondent Thomas B. Acevedo.

O'Mara Law Firm, P.C., and David C. O'Mara, Reno, for Amicus Curiae Nevada Bankers Association.

Hardesty, C.J. We concur: Parraguire, J., Douglas, J., Pickering, J. GIBBONS, J., with whom CHERRY and SAITTA, JJ., join, dissenting.

OPINION

Page 1039

BEFORE THE COURT EN BANC.

HARDESTY, C.J.:

NRS 40.455(1) permits a creditor or deed-of-trust beneficiary who is unable to fully recover its investment through foreclosure to bring an action for a deficiency judgment after " the foreclosure sale or the trustee's sale held pursuant to NRS 107.080, respectively." In this appeal, we determine whether NRS 40.455(1) precludes a deficiency judgment when the beneficiary non judicially forecloses upon property located in another state and the foreclosure is conducted pursuant to that state's laws instead of NRS 107.080. We hold it does not, and we therefore reverse the district court's order and remand for further proceedings consistent with this opinion.

FACTS

In 2007, respondent Windhaven & Tollway, LLC, borrowed nearly $17 million from appellant Branch Banking and Trust Company's predecessor-in-interest.[1] The loan was secured by various assets, including real property located in Texas. The parties agreed that Nevada law would govern the note and that the courts in Clark County, Nevada, and Collin County, Texas, would have jurisdiction over future disputes. The remaining respondents to this action (collectively referred to as the Guarantors) entered into a guaranty agreement to pay any debt remaining if Windhaven defaulted.

Windhaven defaulted on the loan, and Branch Banking sent it and the Guarantors a demand letter requesting repayment. Four months later, Branch Banking mailed Windhaven and the Guarantors a notice of trustee's sale, stating that it would foreclose on the Texas property if payment was not received. Windhaven and the Guarantors failed to remit payment and the property was sold at a non judicial foreclosure sale under Texas law for $14,080,000. At that time, the total indebtedness remaining on the loan was $16,675,218.61. Branch Banking then sought a deficiency judgment against ...


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