United States District Court, D. Nevada
PROF-2013-S3 LEGAL TITLE TRUST V, By U.S. Bank National Association as Legal Title Trustee, Plaintiff
SATICOY BAY LLC SERIES 6425 EXTREME SHEAR, BOULDER RANCH MASTER ASSOCIATION, and HOMEOWNER ASSOCIATION SERVICES, INC. Defendants AND ALL RELATED COUNTERCLAIMS AND CROSS CLAIMS
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT, (2) DENYING SATICOY'S MOTION FOR SUMMARY
JUDGMENT, AND (3) GRANTING IN PART BOULDER RANCH'S MOTION
FOR SUMMARY JUDGMENT [ECF NOS. 48, 49, 57]
P. GORDON UNITED STATES DISTRICT JUDGE
PROF-2013-S3 (PROF) filed this lawsuit to determine whether
its deed of trust still encumbers property located at 6425
Extreme Shear Avenue #101, Henderson, Nevada following a
non-judicial foreclosure sale conducted by defendant Boulder
Ranch Master Association (Boulder Ranch). ECF No. 22. PROF
also asserts an unjust enrichment claim against Boulder
Ranch; Boulder Ranch's foreclosure agent, defendant
Homeowner Association Services, Inc. (HAS); and the current
owner of the property, defendant Saticoy Bay LLC Series 6425
Extreme Shear (Saticoy). Id. Finally, PROF asserts
other damages claims against Boulder Ranch and HAS.
counterclaims for a declaration that the foreclosure sale
extinguished the deed of trust. ECF No. 29. Saticoy also
cross-claims against Boulder Ranch and HAS for fraudulent
concealment and unjust enrichment. Id.
and Saticoy each move for summary judgment on their
declaratory relief claims. Saticoy also moves for summary
judgment on its misrepresentation and unjust enrichment
cross-claims against Boulder Ranch. Boulder Ranch opposes
Saticoy's motion and also moves for summary judgment on
the cross-claims against it.
parties are familiar with the facts, and I will not repeat
them here except where necessary to resolve the motions.
Because PROF 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,
PROF's damages claims against Boulder Ranch and HAS are
moot. I therefore grant summary judgment in favor of PROF and
against Saticoy and dismiss as moot PROF's damages claims
(except unjust enrichment) against Boulder Ranch and HAS. I grant
Boulder Ranch's motion as to Saticoy's fraudulent
misrepresentation claim and grant it in part as to
Saticoy's unjust enrichment claim. I deny Saticoy's
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).
Statute of Limitations
moves to dismiss PROF's declaratory relief claim, arguing
a three-year limitation period applies. PROF responds that a
five-year limitation period applies.
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 November
21, 2013, the trustee's deed upon sale was recorded on
January 6, 2014, and PROF filed the complaint in this matter
on June 29, 2017. ECF Nos. 1; 48-16. PROF's claim for a
declaration that the deed of trust was not extinguished
therefore is timely.
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) PROF 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) PROF did not prove there were
sufficient funds to cover the tender check; (5) HAS rejected
the tender in good faith; and (6) PROF 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 BAC Home Loans Servicing, LP
paid the superpriority amount in full. The monthly homeowners
association (HOA) assessment was $37.50 per month and
increased to $38.75 in 2011. ECF Nos. 48-14 at 13; 48-18 at
10. Prior to the HOA foreclosure sale, BAC tendered $348.75
to cover the superpriority amount. ECF No. 48-14 at 16-18.
There is no evidence of nuisance abatement charges. There
also is no evidence Boulder Ranch 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 PROF 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. PROF 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
PROF'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 real property.”).
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.
Recording the Tender
argues that tender of the superpriority amount creates either
an assignment or subrogation of the HOA lien, and an
assignment or subrogation must be recorded to affect the
rights of a bona fide purchaser like Saticoy. The Supreme
Court of Nevada has rejected the argument that a tender must
be recorded. Id. at 119-20. Although Saticoy
contends the Supreme Court of Nevada erred in its analysis,
it is the role of that court, not this court, to determine
Nevada law. Rudin ...