United States District Court, D. Nevada
HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR DEUTSCHE ALT-A SECURITIES INC. MORTGAGE LOAN TRUST, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-4, Plaintiff,
UNDERWOOD PARTNERS, LLC; NV EAGLES, LLC; SPANISH STEPS LAKESIDE HOMEOWNERS ASSOCIATION; and HAMPTON & HAMPTON COLLECTIONS, LLC, Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRCIT JUDGE
the Court are Defendant Spanish Steps Lakeside Homeowners
Association's Renewed Motion to Dismiss (ECF No. 54),
Spanish Steps Lakeside Homeowners Association's Renewed
Motion for Summary Judgment (ECF No. 55), and Plaintiff's
Renewed Motion for Summary Judgment against Defendants
Underwood Partners, LLC and Nevada Eagles, LLC (ECF No. 56).
complaint filed February 13, 2017, Plaintiff states five
causes of action: (1) Quiet Title/Declaratory Relief Pursuant
to 28 U.S.C. § 2201, NRS 30.010 et seq., and NRS 40.010;
(2) Declaratory Relief Under Amendments V and XIV to the
United States Constitution; (3) Quiet Title Under the
Amendments V and XIV to the United States Constitution; (4)
Permanent and Preliminary Injunction; and (5) Unjust
Enrichment. ECF No. 1. For the reasons stated below, the
Court grants the Renewed Motion to Dismiss as to
Plaintiff's first clause of action. The Court denies
Plaintiff's summary judgment motion and denies Spanish
Steps's summary judgment motion as to Plaintiff's
declaratory relief claim regarding tender and the related
equitable claim to set aside the foreclosure based upon
tender. The grants summary judgment in favor of Spanish Steps
on all remaining claims.
Court summarizes the facts alleged in Plaintiff's
complaint. ECF No. 1.
about May 19, 2005, nonparty Matthew P. Gardner purchased a
property located at 276 Big Horn Drive, Boulder City, Nevada
89005 (APN 181-33-814-002) (“the Property”). The
Deed of Trust executed by Gardner identified GreenPoint
Mortgage Funding, Inc. as the Lender, Marin Conveyancing
Corp. as the Trustee, and Mortgage Electronic Registration
Systems, Inc. (“MERS”) solely as a nominee for
Lender and Lender's successors and assigns, securing a
loan in the amount of $256, 800.00. On August 25, 2009, a
Corporation Assignment of Deed of Trust was recorded in which
all beneficial interest in the Deed of Trust was assigned to
Plaintiff HSBC Bank USA, National Association, as Trustee for
the Certificateholders for the Mortgage Pass-Through
Certificates, Series 2005-4.
August 4, 2009, a Notice of Delinquent Assessment Lien
(“HOA Lien” or “NOL”) was recorded
against the Property by Defendant Hampton & Hampton
Collections, LLC (“Hampton & Hampton”) on
behalf of Defendant Spanish Steps Lakeside Homeowners
Association (“Spanish Steps”). On December 14,
2012, a Notice of Default and Election to Sell Real Property
(“NOD”) to Satisfy Delinquent Assessment Lien was
recorded against the Property by Hampton & Hampton on
behalf of Spanish Steps, stating that the amount due as of
December 11, 2012 was $8, 489.00. On April 4, 2013, a Notice
of Trustee's Sale (“NOS”) was recorded
against the Property by Hampton & Hampton on behalf of
Spanish Steps, stating that the amount due as of April 4,
2013 was $9, 733.00. The recorded notices included improper
fees and costs and did not identify the super-priority
portion of the lien.
nonjudicial foreclosure sale of the Property occurred on May
21, 2013 (the “HOA Sale”), to Defendant Underwood
Partners, LLC for $17, 000.00. The Trustee's Deed Upon
Sale stated that the amount of the unpaid debt together with
costs at the time of the HOA Sale was $9, 917.00. On or about
September 18, 2013, Underwood Partners conveyed its interest
in the Property, if any, to Defendant NV Eagles, LLC.
Undisputed Facts 
Court finds that Plaintiff's alleged facts are
undisputed. That Court further finds the following facts to
Bauer, Bergstorm & Winters, LLP (“Miles
Bauer”), representing Plaintiff's predecessor in
interest (MERS as nominee for Bank of America, N.A.), sent a
letter to Hampton & Hampton dated January 17, 2013. ECF
No. 55, Exhibit 8-1. The letter requested the status of an
HOA lien foreclosure sale and offered to pay the previous
nine months of assessments pursuant to NRS 116.3116(2)(b).
Id. On January 22, 2013, Miles Bauer sent a fax to
Hampton & Hampton requesting “a full payoff for the
HOA arrears as they currently exist.” ECF No. 55,
January 25, 2013, Hampton & Hampton sent a fax to Miles
Bauer with a letter and statement of account indicating that
the amount due for nine months of assessments on the Property
was $1, 566.00. ECF No. 55, Exhibit 8-2. On January 29, 2013,
Hampton & Hampton sent a fax to Miles Bauer with a letter
and statement of account indicating that the total amount due
on the Property was $10, 665.00. ECF No. 55, Exhibit 8-4.
February 13, 2013, Miles Bauer provided a cashier's check
to Hampton & Hampton for $1, 566.00 on behalf of
Plaintiff's predecessor. ECF No. 55, Exhibit 8-5. Hampton
& Hampton accepted the payment and applied it to the
outstanding $10, 655.00 balance.
filed its Complaint on February 13, 2017. ECF No. 1.
Defendants NV Eagles, Underwood Partners, and Spanish Steps
filed first Motions to Dismiss on March 28, 2017. ECF Nos. 5,
6. The Court entered a scheduling order on April 7, 2017,
with discovery due by September 25, 2017 and dispositive
motions due by October 25, 2017. ECF No. 14. Defendant
Hampton & Hampton filed its Answer to the Complaint on
April 18, 2017. ECF No. 17.
and Defendants Spanish Steps, NV Eagles, and Underwood
Partners filed Motions for Summary Judgment on October 27,
2017 pursuant to the Court's extension of the deadline.
ECF Nos. 30, 32, 33. Defendants NV Eagles and Underwood
Partners filed an additional Motion to Dismiss on February 5,
2018. ECF No. 46.
March 23, 2018, the Court issued a stay in the case pending
the Nevada Supreme Court's decision on a certified
question of law regarding NRS 116's notice requirement in
Bank of N.Y. Mellon v. Star Hill Homeowners
Ass'n, No. 2:16-cv-02561-RFB-PAL and denied all
pending motions without prejudice. ECF No. 49. The Nevada
Supreme Court published an answer to the certified question
on October 3, 2018. SFR Investments Pool 1, LLC v. Bank
of New York Mellon, 422 P.3d 1248 (Nev. 2018).
Spanish Steps filed the instant Renewed Motion to Dismiss and
Renewed Motion for Summary Judgment on August 23, 2018. ECF
No. 54. Plaintiff filed the instant Renewed Motion for
Summary Judgment on August 24, 2018. ECF No. 56.