United States District Court, D. Nevada
ORDER (1) GRANTING IN PART PARKSIDE'S MOTIONS;
(2) DENYING BANK OF NEW YORK MELLON'S MOTION; AND (3)
GRANTING IN PART WILLISTON'S MOTION [ECF NOS. 44, 48, 51,
P. GORDON UNITED STATES DISTRICT JUDGE
a dispute over whether a deed of trust still encumbers
property located at 8124 Jasmine Hollow Court, Las Vegas,
Nevada. Plaintiff Bank of New York Mellon (BONY) seeks a
judicial determination that its deed of trust still encumbers
the property following a non-judicial foreclosure sale
conducted by defendant Parkside Village Homeowners'
Association after the prior property owners failed to pay
homeowners association (HOA) assessments. Defendant Williston
Investment Group LLC purchased the property at the HOA
seeks a declaration that the deed of trust was not
extinguished because the HOA and its foreclosure agent,
defendant Nevada Association Services, Inc. (NAS), failed to
provide proper notice of the sale; the HOA foreclosure
statute as it existed at the time of the HOA sale was
unconstitutional; BONY's predecessor offered to pay the
superpriority lien prior to the sale; and the sale should be
set aside on equitable grounds. BONY also asserts damages
claims against Parkside and NAS for breach of Nevada Revised
Statutes § 116.1113, wrongful foreclosure, and deceptive
trade practices. Williston counterclaims for a declaration
that the HOA sale extinguished the deed of trust.
moves to dismiss and for summary judgment. Williston and BONY
also move for summary judgment. The parties are familiar with
the facts, and I will not repeat them here except where
necessary to resolve the motions. I grant in part Williston
and Parkside's motions. I deny BONY's motion.
considering a motion to dismiss, “all well-pleaded
allegations of material fact are taken as true and construed
in a light most favorable to the non-moving party.”
Wyler Summit P'ship v. Turner Broad. Sys., Inc.,
135 F.3d 658, 661 (9th Cir. 1998). However, I do not assume
the truth of legal conclusions merely because they are cast
in the form of factual allegations. See Clegg v. Cult
Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
A plaintiff must make sufficient factual allegations to
establish a plausible entitlement to relief. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007). Such
allegations must amount to “more than labels and
conclusions, [or] a formulaic recitation of the elements of a
cause of action.” Id. at 555.
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).
Determining Adverse Interests in Property
one of BONY's complaint and Williston's counterclaim
seek to determine whether BONY's deed of trust was
extinguished by the HOA foreclosure sale. The parties raise
numerous issues regarding this claim, including the
applicable statute of limitations, tender, whether the sale
was for a superpriority or subpriority amount, whether the
sale should be equitably set aside, due process, and who are
proper parties to the claim.
Statute of Limitations
argues BONY's claim is untimely because it is subject to
either a 45- or 60-day limitation period under Nevada Revised
Statutes § 107.080. Williston contends BONY's claim
is untimely because it is subject to a three-year limitation
period as either a claim for liability created by statute or
as equivalent to wrongful foreclosure. BONY contends its
claim is not subject to any limitation period or
alternatively is subject to a 5- or 10-year limitation
previously ruled that the four-year catchall limitation
period in Nevada Revised Statutes § 11.220 applies to
claims brought by a lienholder seeking to determine whether
an HOA sale extinguished its deed of trust. See Bank of
Am., N.A. v. Country Garden Owners Ass'n, No.
2:17-cv-01850-APG-CWH, 2018 WL 1336721, at *2 (D. Nev. Mar.
14, 2018). In doing so, I rejected arguments similar
to those Williston and BONY make for shorter or longer
periods. Parkside provides no authority for the proposition
that the timelines in § 107.080 apply to a challenge to
an HOA foreclosure sale under Chapter 116. That section
refers to foreclosures of deeds of trust, not HOA liens. Nev.
Rev. Stat. § 107.080(1). I therefore apply the four-year
catchall limitation period to this claim.
sale was conducted on March 16, 2012, and the deed upon sale
was recorded on February 1, 2013. ECF No. 50-9. BONY filed
this lawsuit on February 23, 2016. ECF No. 1. Thus, even
using the earlier date of the HOA sale, BONY's claim is
timely. Accordingly, I deny Parkside and Williston's
motions based on the statute of limitations as to this claim.
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. “[A] promise to
make a payment at a later date or once a certain condition
has been satisfied cannot constitute a valid tender.”
Bank of Am., N.A. v. Thomas Jessup, LLC Series VII,
435 P.3d 1217, 1219 (Nev. 2019) (holding that an “offer
to pay the yet-to-be-determined superpriority amount was not
sufficient to constitute a valid tender”). But tender
is excused if the payment would not have been accepted.
Id. at 1220 (holding that tender was excused where
testimony established the HOA's agent would have rejected
no genuine dispute remains that Bank of America's letter
did not constitute tender because Bank of America offered to
pay the superpriority amount in the future once that amount
was determined, but it did not tender payment. ECF No. 50-8.
BONY argues that tender is nevertheless excused because NAS
would not have accepted the payment if it had been made. BONY
does not present deposition testimony, affidavits,
admissions, or answers to interrogatories in which NAS or
Parkside state whether they would (or would not) have
accepted payment on this property if Bank of America had
BONY relies on a brief filed in an arbitration proceeding to
which NAS was a party. See ECF Nos. 50-12; 50-13.
That brief, which NAS joined in September 2012, made
arguments about when a superpriority lien was triggered, what
was included in the superpriority lien, and whether
lienholders could pay off the superpriority amount. Viewing
the facts in the light most favorable to Williston and
Parkside on BONY's motion for summary judgment, questions
of fact remain about whether NAS would have accepted tender.
The brief was filed six months after the HOA foreclosure sale
in this case. Thus, it may or may not reflect NAS's
position generally or in particular with respect to this
property during the time period leading up to the March 2012
sale. Additionally, neither the brief nor NAS's joinder
specifically states that NAS would have automatically
rejected a tender of nine months' worth of assessments
for this property during the relevant
viewing the facts in the light most favorable to BONY, a
genuine dispute remains as to whether tender would have been
futile. A reasonable jury could conclude that NAS would not
have accepted payment of nine months' worth of
assessments and instead would have accepted payment of only
the total amount of the HOA's lien based on NAS's
position six months later that the ...