United States District Court, D. Nevada
ORDER GRANTING MOTIONS TO DISMISS [ECF NOS. 27,
P. GORDON UNITED STATES DISTRICT JUDGE
Bank of New York Mellon (BONY) filed a single-count complaint
for a declaration that its deed of trust still encumbers
property located at 8452 Boseck Drive 118, Las Vegas, Nevada.
Defendants Admirals Point II Owners Association and SFR
Investments Pool 1, LLC move to dismiss, arguing the
complaint is untimely. BONY responds that its claim is
subject to a five-year limitation period, so it is timely.
Alternatively, BONY contends that it did not discover its
injury until the Supreme Court of Nevada issued SFR
Investments Pool 1 v. U.S. Bank, 334 P.3d 408, 418 (Nev.
2014) (en banc). I grant the motions to dismiss because
BONY's complaint is untimely.
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
necessarily assume the truth of legal conclusions merely
because they are cast in the form of factual allegations in
the complaint. 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.
claim may be dismissed as untimely pursuant to a 12(b)(6)
motion only when the running of the statute of limitations is
apparent on the face of the complaint.” United
States ex rel. Air Control Techs., Inc. v. Pre Con Indus.,
Inc., 720 F.3d 1174, 1178 (9th Cir. 2013) (alteration
and quotation omitted). A limitation period begins to run
“from the day the cause of action accrued.”
Clark v. Robison, 944 P.2d 788, 789 (Nev. 1997). A
cause of action generally accrues “when the wrong
occurs and a party sustains injuries for which relief could
be sought.” Petersen v. Bruen, 792 P.2d 18, 20
(Nev. 1990); see also State ex rel. Dep't of Transp.
v. Pub. Emps.' Ret. Sys. of Nev., 83 P.3d 815, 817
(Nev. 2004) (en banc) (“A cause of action
‘accrues' when a suit may be maintained
thereon.” (quotation omitted)). Nevada has adopted the
discovery rule, and thus time limits generally “do not
commence and the cause of action does not ‘accrue'
until the aggrieved party knew, or reasonably should have
known, of the facts giving rise to the damage or
injury.” G & H Assocs. v. Ernest W. Hahn,
Inc., 934 P.2d 229, 233 (Nev. 1997).
previously ruled that the four-year catchall limitation
period in § 11.220 applies to declaratory relief claims
under Nevada Revised Statutes § 40.010 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). The HOA foreclosure sale took place on December 5,
2012, the trustee's deed upon sale was recorded on
December 10, 2012, and BONY filed the complaint in this
matter on February 8, 2017. ECF No. 1 at 1, 38. BONY's
claim for a declaration that the deed of trust was not
extinguished therefore is untimely.
reject BONY's argument that the limitation period began
running when the Supreme Court of Nevada issued the
SFR decision. Simply reading the statute that grants
HOAs a superpriority lien would have put BONY on notice of
the possibility that its deed of trust was in jeopardy.
Further, SFR “did not create new law or
overrule existing precedent; rather, that decision declared
what NRS 116.3116 has required since the statute's
inception.” K&P Homes v. Christiana Tr.,
398 P.3d 292, 295 (Nev. 2017) (en banc).
limitation period started running on the date the
trustee's deed upon sale was recorded because BONY knew
or should have known of its injury at that time.
Job's Peak Ranch Cmty. Ass'n, Inc. v. Douglas
Cty., No. 55572, 2015 WL 5056232, at *3 (Nev. Aug. 25,
2015) (“If the facts giving rise to the cause of action
are matters of public record then the public record gave
notice sufficient to start the statute of limitations
running.” (quotation and alteration omitted)).
BONY's complaint is untimely, so I grant the
defendants' motions to dismiss.
THEREFORE ORDERED that Defendants Admirals Point II Owners
Association's motion to dismiss (ECF No. 27) is
FURTHER ORDERED that defendant SFR Investments Pool 1,
LLC's motion to dismiss (ECF No. 35) is
GRANTED IT IS FURTHER ORDERED that the clerk of
court is instructed to enter judgment in favor of defendants
Admirals Point II Owners Association ...