United States District Court, D. Nevada
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT, (2) DENYING SATICOY'S MOTION FOR SUMMARY
JUDGMENT, (3) GRANTING TERRA WEST'S MOTION, AND (4) FOR
STATUS REPORT [ECF NOS. 62, 63, 64]
P. GORDON UNITED STATES DISTRICT JUDGE
Bank of America, N.A. filed this lawsuit to determine whether
its deed of trust still encumbers property located at 10667
Olympic Pine Drive, Las Vegas, Nevada following a
non-judicial foreclosure sale conducted by defendant Westwood
Community Association. ECF No. 1. Bank of America also
asserts various damages claims against Westwood. Id.
Defendant Saticoy Bay LLC purchased the property at the
foreclosure sale. Saticoy counterclaims for a declaration
that the foreclosure sale extinguished the deed of trust. ECF
No. 10. Westwood filed a third party complaint against its
foreclosure agent, Terra West Collections Group, LLC, doing
business as Assessment Management Services (AMS), for breach
of contract, contractual and equitable indemnity, and
contribution. ECF No. 21.
America and Saticoy move for summary judgment on their
declaratory relief claims. AMS moves for summary judgment on
Westwood's contractual and equitable indemnity claim. The
parties are familiar with the facts, and I will not repeat
them here except where necessary to resolve the motions.
Because Bank of America tendered the superpriority amount, it
is entitled to judgment as a matter of law on its own
declaratory relief claim and on Saticoy's counterclaims.
And because the deed of trust was not extinguished, Bank of
America's damages claims against Westwood are moot. I
therefore grant summary judgment in favor of Bank of America
and against Saticoy and dismiss Bank of America's damages
claims against Westwood as moot. I grant AMS's motion
because Westwood will not have to pay damages to Bank of
America, so AMS has nothing to indemnify.
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).
America moves for summary judgment, arguing that it tendered
the superpriority amount prior to the HOA sale. Saticoy
raises a variety of arguments as to why tender did not
extinguish the lien. Specifically, Saticoy contends that (1)
Bank of America cannot resort to equity because it has an
adequate remedy at law and failed to protect its interest
prior to the sale; (2) tender creates either an assignment or
subrogation that must be recorded to affect the rights of a
bona fide purchaser like Saticoy; (3) the tender letter
contained falsehoods and impermissible conditions; (4) Bank
of America did not prove there were sufficient funds to cover
the tender check; (5) Westwood rejected the tender in good
faith; and (6) Bank of America has not properly authenticated
or shown the admissibility of the evidence establishing the
superpriority amount and tender.
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 Bank of America paid the
superpriority amount in full. The monthly homeowners
association (HOA) assessment was $100.00 per month. ECF Nos.
63-5 at 9-17; 63-6 at 8-9. Prior to the HOA foreclosure sale,
Bank of America tendered $900.00 to cover the superpriority
amount. Id. at 19-21. There is no evidence of
nuisance abatement charges. There also is no evidence
Westwood 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 121. I address
below each of Saticoy's other challenges to the tender.
contends that Bank of America cannot resort to equity because
it has an adequate remedy at law, it failed to protect its
interest prior to the sale, and Saticoy is a bona fide
purchaser. Generally, a party cannot obtain an equitable
remedy when it has an adequate remedy at law. Las Vegas
Valley Water Dist. v. Curtis Park Manor Water Users
Ass'n, 646 P.2d 549, 551 (Nev. 1982). However,
Nevada Revised Statutes § 40.010, which allows for
resolving disputes involving adverse interests in property,
“essentially codified” Nevada's historical
recognition “that courts retain the power to grant
equitable relief from a defective foreclosure sale when
appropriate . . . .” Shadow Wood HOA v. N.Y. Cmty.
Bancorp, Inc., 366 P.3d 1105, 1111-12 (Nev. 2016) (en
banc). Thus, while the availability of other remedies (both
before and after the sale) may bear on the equities, a claim
to set aside an allegedly defective foreclosure sale is
necessarily an equitable one that will impact the various
interests in the property and their relative priority. Bank
of America seeks not just repayment of its loan, but the
right to resort to this particular property as security for
repayment. No. remedy at law could overturn the foreclosure
sale and reinstate Bank of America's lien on the
property. See Bank of Am., N.A. v. Diamond Fin.,
LLC, 42 N.E.3d 1151, 1156-57 (Mass. 2015) (concluding a
legal remedy was inadequate because “money damages
would not restore the plaintiff to its rightful senior
position”); Bank of N.Y. Mellon v. Withers,
771 S.E.2d 762, 765 ( N.C. Ct. App. 2015) (“Due to
land's unique nature, damage claims against individuals
are an inadequate substitute for a first position lien on
America acted to protect its interest through the tender, and
a valid tender discharges the superpriority lien “by
operation of law.” Id. at 120. Finally,
Saticoy's status as a bona fide purchaser in terms of
weighing the equities is irrelevant because the tender
rendered the HOA sale void as to the superpriority lien.
Id. at 121.