United States District Court, D. Nevada
ORDER (1) GRANTING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT ON TENDER, (2) DENYING
ALL OTHER MOTIONS AS MOOT, AND (3) ORDERING GRAPEVINE TO SHOW
CAUSE WHY ALESSI SHOULD NOT BE DISMISSED [ECF NOS. 42, 48,
66, 67, 74]
P. GORDON, UNITED STATES DISTRICT JUDGE
Ditech Financial LLC (Ditech) filed this lawsuit to determine
whether its deed of trust still encumbers property located at
235 Thompson Drive in Mesquite, Nevada, following a
non-judicial foreclosure sale conducted by defendant
Grapevine Villas Homeowners' Association (Grapevine). ECF
No. 1. Ditech also asserts a wrongful foreclosure claim
against Grapevine. Id. Grapevine filed a third party
complaint against its foreclosure agent, Alessi & Koenig
LLC (Alessi), in the event that Grapevine is liable in
damages to Ditech. ECF No. 23. Defendant Resource Group, LLC
is the current property owner. Resource Group counterclaims
for a declaration that Grapevine's foreclosure sale
extinguished the deed of trust. ECF No. 64.
parties are familiar with the facts, and I will not repeat
them here except where necessary to resolve the motions.
Because Ditech tendered the superpriority amount, it is
entitled to judgment as a matter of law on its own
declaratory relief claim and on Resource Group's
counterclaims. And because the deed of trust was not
extinguished, Ditech's damages claim against Grapevine is
moot. I therefore grant summary judgment in favor of Ditech
and against Resource Group and deny all other pending motions
as moot. I also direct Grapevine to show cause why its claims
against Alessi should not be dismissed for failure to
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.
is no dispute that Bank of America, N.A. paid the
superpriority amount in full. The monthly homeowners
association (HOA) assessment was $34.00 per month. ECF No.
67-8 at 15-16. Prior to the HOA foreclosure sale, Bank of
America tendered $979.33 to cover both the superpriority
amount and some collection costs. Id. at 18-20.
There is no evidence Grapevine recorded a second notice of
delinquent assessment lien that might have triggered a second
superpriority lien. See Prop. Plus Investments, LLC v.
Mortg. Elec. Registration Sys., Inc., 401 P.3d 728,
731-32 (Nev. 2017) (en banc). The superpriority lien
therefore was extinguished, and the property remains subject
to the deed of trust. Bank of Am., N.A., 427 P.3d at
Group did not oppose Ditech's motion for summary judgment
on tender, but it argues in some of its other filings that
Ditech is not entitled to equitable relief and that Resource
Group is a bona fide purchaser. However, a valid tender
discharges the superpriority lien “by operation of
law.” Id. at 120. Thus, Ditech need not resort
to equity to prevail on tender. Further, Resource Group's
status as a bona fide purchaser is irrelevant because the
tender rendered the HOA sale void as to the superpriority
lien. Id. at 121.
the valid tender cured the default as to the superpriority
portion of the HOA's lien, so the HOA's foreclosure
on the entire lien resulted in a void sale as to the
superpriority portion. As a result, the property remains
subject to the deed of trust. Because the deed of trust was
not extinguished and Ditech asserted its wrongful foreclosure
claim against Grapevine as an alternative means of relief in
the event that its deed of trust was extinguished,
that claim is now moot.
leaves Grapevine's third party claims against Alessi. No.
summons was ever issued as to Alessi and there is no proof of
service on Alessi. I therefore order Grapevine to show cause
why its claims against Alessi should not be dismissed for
failure to prosecute.
THEREFORE ORDERED that plaintiff Ditech Financial LLC's
motion for summary judgment (ECF No. 67) is
GRANTED. The clerk court of court is instructed to
enter judgment in favor of plaintiff Ditech Financial LLC and
against defendant Resource Group, LLC as follows: It is
hereby declared that the homeowners association's
non-judicial foreclosure sale conducted on October 2, 2013
did not extinguish Ditech Financial LLC's interest in the
property located at 235 Thompson Drive in Mesquite, Nevada,
and thus the property is subject to the deed of trust.
FURTHER ORDERED that plaintiff Ditech Financial LLC's
wrongful foreclosure claim against defendant Grapevine Villas