United States District Court, D. Nevada
(1) GRANTING IN PART PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT REGARDING TENDER AND UNJUST ENRICHMENT; (2)
DISMISSING PLAINTIFF'S DECLARATORY RELIEF CLAIM AGAINST
MERIDIAN; (3) DISMISSING PLAINTIFF'S WRONGFUL FORECLOSURE
CLAIM AGAINST MERIDIAN AND RED ROCK; AND (4) DENYING OTHER
PENDING MOTIONS AS MOOT [ECF NOS. 23, 30, 31, 32]
P. GORDON UNITED STATES DISTRICT JUDGE.
The Bank of New York Mellon (BONY) filed this lawsuit to
determine whether its deed of trust still encumbers property
located at 230 E. Flamingo Road #123, Las Vegas, Nevada,
following a non-judicial foreclosure sale conducted by
defendant Meridian Private Residences Homeowners Association
(Meridian). ECF No. 1. BONY also asserted various damages
claims against Meridian; Meridian's foreclosure agent,
Red Rock Financial Services (Red Rock); and the current
property owner, Invest Vegas, LLC (Invest Vegas), some of
which I dismissed. Id.; ECF Nos. 26, 27. Invest
Vegas asserted counterclaims for declaratory relief and quiet
title against BONY. ECF No. 16.
moves for summary judgment, arguing that because it tendered
the superpriority amount, Meridian's non-judicial
foreclosure sale did not extinguish the deed of trust. BONY
also argues it is entitled to judgment on its unjust
enrichment claim against Invest Vegas for homeowners
association (HOA) assessments that BONY paid even though
Invest Vegas is the property owner who is legally responsible
for the assessments.
Meridian responded, arguing that the HOA's lien included
fees and costs, so BONY's payment of only nine
months' of assessments did not satisfy the lien. Meridian
also argues it rejected BONY's tender in good faith and
BONY took no further action to preserve its deed of trust
after that rejection. Finally, Meridian states that it does
not oppose BONY's unjust enrichment claim against Invest
Vegas. Meridian also moves for summary judgment, raising many
of these same arguments. As to BONY's wrongful
foreclosure claim, Meridian argues the foreclosure was not
wrongful because it is undisputed the homeowner was in
default on the HOA assessments and Meridian's rejection
of the tender was in good faith.
parties are familiar with the facts, and I will not repeat
them here except where necessary to resolve the motions.
Because no genuine dispute remains that BONY tendered the
superpriority amount, BONY is entitled to judgment as a
matter of law on its own declaratory relief claim and on
Invest Vegas's counterclaims. Because the deed of trust
was not extinguished, there is no basis to set aside the
sale, so I dismiss Meridian from the quiet title claim. I
grant summary judgment in Meridian's and Red Rock's
favor on the wrongful foreclosure claim because it was an
alternative claim for relief if the deed of trust was
BONY's unjust enrichment claim, I deny it because BONY
has not sufficiently shown that it paid HOA assessments for
this property and BONY has not supplemented its complaint to
request additional sums BONY allegedly paid after the
complaint was filed. I decline to consider BONY's
arguments regarding unjust enrichment against Meridian
because I previously dismissed that claim against Meridian.
BONY did not move for summary judgment on its unjust
enrichment claim against Red Rock. That claim therefore
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).
Declaratory Relief and Wrongful Foreclosure
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 $408.00 per month. ECF No.
23-2 at 13-18. Prior to the HOA foreclosure sale, Bank of
America tendered $3, 672.00 to cover the superpriority amount
of nine months' of assessments. Id. at 21-22.
There is no evidence Meridian 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 Supreme Court of Nevada has
already rejected similar arguments that Meridian makes
regarding the conditions on the tender, the amount of the
superpriority lien, and good faith rejection of the tender.
See Bank of Am., N.A., 427 P.3d at 117-18, 121;
Nationstar Mortg., LLC v. Jackel Properties, LLC,
No. 75040, 435 P.3d 1224, 2019 WL 1244787, at *1 (Nev. 2019).
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 121.
I grant BONY's motion for summary judgment on its
declaratory relief claim against Invest Vegas and on Invest
Vegas's counterclaims. Because the HOA sale will not be
set aside, I dismiss the declaratory relief claim against
Meridian because it is no longer a necessary party to that
claim. Additionally, because the deed of trust
was not extinguished, and BONY asserted its wrongful
foreclosure claim against Meridian and Red ...