United States District Court, D. Nevada
ORDER (1) DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT, (2) GRANTING IN PART THE DEFENDANTS' MOTIONS
FOR SUMMARY JUDGMENT, AND (3) REOPENING DISCOVERY FOR A
LIMITED PURPOSE [ECF NOS. 55, 56, 57]
P. GORDON UNITED STATES DISTRICT JUDGE
Bank of America, N.A. sues to determine whether its deed of
trust still encumbers property located at 6541 Pleasant
Plains Way in Las Vegas, Nevada, following a non-judicial
foreclosure sale conducted by the homeowners association
(HOA), defendant Woodcrest Homeowners Association
(Woodcrest). Defendant 6541 Pleasant Wy Trust (Trust)
purchased the property at the HOA foreclosure sale. Bank of
America seeks a declaration that the deed of trust was not
extinguished by the HOA foreclosure sale. The Trust
counterclaims to quiet title in itself free and clear of the
deed of trust. ECF No. 19.
parties each move for summary judgment. I deny Bank of
America's motion, grant in part Woodcrest's and the
Trust's motions, and reopen discovery for a period of 60
days for the parties to develop evidence related to Bank of
America's tender attempt and whether payment was excused
or would have been futile. / / / /
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).
Woodcrest argues Bank of America cannot assert a claim to
“quiet title” because it is only a lienholder and
thus cannot establish good title in itself. Under Nevada
Revised Statutes § 40.010, an “action may be
brought by any person against another who claims an estate or
interest in real property, adverse to the person bringing the
action, for the purpose of determining such adverse
claim.” “Thus, any person claiming an interest in
the property may seek to determine adverse claims, even if
that person does not have title to or possession of the
property.” Nationstar Mortg. LLC v. Amber Hills II
Homeowners Ass'n, No. 2:15-cv-01433-APG-CWH, 2016 WL
1298108, at *3 (D. Nev. Mar. 31, 2016). Accordingly, it is
not fatal to Bank of America's declaratory relief claim
that it asserts a lien interest rather than title to the
Adequate Remedy at Law
Trust argues Bank of America cannot resort to equity because
it has an adequate remedy at law. 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., 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 real
America contends that its offer to pay the superpriority
amount qualifies as a tender that discharged the
superpriority lien, or its offer to pay combined with the
response from Woodcrest's foreclosure agent, Absolute
Collection Services, Inc. (Absolute), operates as a tender.
Alternatively, Bank of America argues the former homeowner
made payments sufficient to discharge the superpriority
Trust and Woodcrest contend that an offer to pay without
actual payment does not constitute a valid tender and that
Bank of America thereafter did nothing to protect its
interest despite Absolute telling Bank of America additional
steps it could take. The Trust also argues Bank of America
has not presented evidence showing the prior homeowner's
payments were allocated toward the superpriority portion of
the HOA's lien.
is an affirmative defense that Bank of America bears the
burden of proving. Res. Grp., LLC as Tr. of E. Sunset Rd.
Tr. v. Nev. Ass'n. Servs., Inc., 437 P.3d 154, 158
(Nev. 2019) (en banc) (“Payment of a debt is an
affirmative defense, which the party asserting has the burden
of proving.”). “A valid tender of payment
operates to discharge a lien or cure a default.”
Bank of Am., N.A. v. SFR Investments Pool 1, LLC,
427 P.3d 113, 117 (Nev. 2018) (en banc) (quotation omitted).
For tender to be valid, it must be (1) “payment in
full” and (2) either unconditional or “with
conditions on which the tendering party has a right to
insist.” Id. at 118. “The only legal
conditions which may be attached to a valid tender are either
a receipt for full payment or a surrender of the
obligation.” Id. (quotation omitted).
promise to make a payment at a later date or once a certain
condition has been satisfied cannot constitute a valid
tender.” Bank of Am., N.A. v. Thomas Jessup, LLC
Series VII, 435 P.3d 1217, 1219 (Nev. 2019) (holding
that an “offer to pay the yet-to-be-determined
superpriority amount was not sufficient to constitute a valid
tender”). But tender is excused if the payment would
not have been accepted. Id. at 1220.
Bank of ...