United States District Court, D. Nevada
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND (2) DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT [ECF NOS. 124, 128]
P. GORDON UNITED STATES DISTRICT JUDGE.
a dispute over property located at 6709 Brick House Avenue in
Las Vegas, Nevada. Plaintiff Carrington Mortgage Services,
LLC intends to foreclose on its deed of trust encumbering the
property because the former owner has stopped making mortgage
payments. However, defendant Cactus Springs at Fairfax
Village Homeowners Association previously foreclosed on its
homeowners association (HOA) lien after the property owners
did not pay their HOA assessments. Defendant Saticoy Bay, LLC
Series 6709 Brick House purchased the property at the HOA
foreclosure sale. Carrington seeks to determine adverse
interests in the property, contending that the HOA
foreclosure sale did not extinguish its deed of trust.
Saticoy counterclaims to quiet title in itself.
and Saticoy each move for summary judgment. I grant
Carrington's motion and deny Saticoy's motion because
no genuine dispute remains that Carrington's predecessor
tendered the superpriority amount prior to the HOA
foreclosure sale. Consequently, Saticoy purchased the
property subject to Carrington's deed of trust.
and Teresa Christie are the prior owners of the property. ECF
No. 1-1. The property was encumbered by a deed of trust that
eventually was transferred to Carrington. ECF Nos. 124-1,
124-3, 124-4. On September 20, 2011, Cactus Springs, through
its agent Hampton & Hampton, LLC, sent a notice of
delinquent assessment lien to the Christies because the
Christies failed to pay HOA assessments. ECF Nos. 124-7 at 4;
127-6. In October 2011, Hampton recorded a notice of default
and election to sell. ECF No. 124-5. In December 2011,
Hampton advised Carrington's predecessor, Bank of
America, that the payoff amount for the superpriority lien
was $281.25. ECF No. 124-6 at 11-12. The next month, Bank of
America paid $281.25 to Hampton for the superpriority lien.
ECF Nos. 124-6 at 6; 124-8.
than two years later, Hampton recorded a second notice of
default and election to sell on Cactus Springs' behalf.
ECF Nos. 124-7 at 5; 124-9. In April 2015, Hampton recorded a
notice of trustee's sale. ECF No. 124-11. The notice of
sale referred back to the notice of delinquent assessment
dated September 20, 2011. Id. The property was sold
in June 2015 to Saticoy for $81, 200.00. ECF No. 124-12.
judgment is appropriate if the movant shows “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000); Sonner v. Schwabe N. Am.,
Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To
defeat summary judgment, the nonmoving party must produce
evidence of a genuine dispute of material fact that could
satisfy its burden at trial.”). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
Nevada law, a “first deed of trust holder's
unconditional tender of the superpriority amount due results
in the buyer at foreclosure taking the property subject to
the deed of trust.” Bank of Am., N.A. v. SFR
Investments Pool 1, LLC, 427 P.3d 113, 116 (Nev. 2018)
(en banc). To be valid, tender must be for “payment in
full” and must either be “unconditional, or with
conditions on which the tendering party has a right to
insist.” Id. at 118.
no genuine dispute remains that Carrington's predecessor
paid the superpriority amount in full. The superpriority lien
therefore was extinguished, and Saticoy took title to the
property subject to the deed of trust. Id. at 121.
raises several arguments as to why the deed of trust
nevertheless should be extinguished. First, it argues that it
is a bona fide purchaser for value. However, a
“party's status as a [bona fide purchaser] is
irrelevant when a defect in the foreclosure proceeding
renders the sale void, ” and a “foreclosure sale
on a mortgage lien after valid tender satisfies that lien is
void, as the lien is no longer in default.”
Id. Consequently, Saticoy's status as a bona
fide purchaser is irrelevant.
next argues that even if the tender extinguished the
superpriority lien related to the first notice of default,
the HOA filed a second notice of default in 2014 and the HOA
foreclosure sale was based on this second notice. Nevada
Revised Statutes § 116.3116 “does not limit an HOA
to one lien enforcement action or one superpriority lien per
property forever.” Prop. Plus Investments, LLC v.
Mortg. Elec. Registration Sys., Inc., 401 P.3d 728, 731
(Nev. 2017) (en banc). “Therefore, when an HOA rescinds
a superpriority lien on a property, the HOA may subsequently
assert a separate superpriority lien on the same property
based on monthly HOA dues, and any maintenance and nuisance
abatement charges, accruing after the rescission of the
previous superpriority lien.” Id. at 731-32.
“But to trigger a new superpriority lien, the HOA must
commence a new enforcement action” by either
“completing a prior enforcement action through
foreclosure” or “recording a rescission of a
prior lien.” Nationstar Mortg. LLC v. Saticoy Bay
LLC Series 8920 El Diablo, No. 2:16-cv-00751-JCM-VCF,
2018 WL 1770127, at *6 (D. Nev. Apr. 12, 2018) (citing
Prop. Plus Investments, LLC, 401 P.3d at 731-32).
the HOA never rescinded the September 2011 notice of lien,
and the second notice of default states that is based on the
September 2011 notice of lien. Carrington's predecessor
had already paid off the superpriority portion of that lien.
The filing of a second notice of ...