United States District Court, D. Nevada
BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE, ON BEHALF OF THE REGISTERED HOLDERS OF ALTERNATIVE LOAN TRUST 2007-OA7, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-OA7, Plaintiffs,
THUNDER PROPERTIES, INC., A Nevada corporation; SUNRISE VILLAS CONDOMINIUM HOMEOWNERS ASSOCIATION, a Nevada non-profit corporation; E. ALAN TIRAS, ESQ., an individual and E. ALAN TIRAS, P.C., a Nevada Professional Corporation, Defendants.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
dispute arises from a non-judicial foreclosure sale of real
property located at 1001 Baywood Dr., Unit A, Sparks, Nevada
89434, APN 036-372-23 (“Property”) to satisfy a
homeowners' association lien (“HOA Sale”).
Cross-motions for summary judgment are currently pending
before the Court. Plaintiff Bank of New York Mellon, F/K/A
Bank Of New York, As Trustee, On Behalf Of The Registered
Holders Of Alternative Loan Trust 2007-OA7, Mortgage
Pass-Through Certificates Series 2007-OA7 (hereinafter
“BONY” or “Plaintiff”) seeks an order
from this Court granting quiet title in its favor and holding
that its first deed of trust was not extinguished by the HOA
Sale and thus continues to encumber the Property. (ECF No.
69.) Defendant Sunrise Villas Condominiums Homeowners
Association (“HOA”) claims the deed of trust was
extinguished by the HOA Sale. (ECF No. 71.) Defendant Thunder
Properties, Inc. (“Thunder”), which purchased the
Property at the HOA Sale, argues the same in its response to
BONY's motion. (ECF No. 75.) The Court grants summary
judgment for BONY because the Court concludes that valid
tender of the superpriority lien amount preserved the first
deed of trust. The Court therefore denies the HOA's
motion (ECF No. 71).
following facts are undisputed unless otherwise
December 2004, Danielle Moore (“Moore” or
“Borrower”) obtained the Property via a Grant,
Bargain, Sale Deed. (ECF No. 70 at 5-6.) On January 5, 2007,
Lender First Magnus Financial Corporation (“First
Magnus”) recorded a deed of trust (“DOT”)
in the Washoe County Recorder's Office, reflecting that
Moore had borrowed a loan from First Magnus for $128, 000.00
(“Loan”). (Id. at 8-9.) Borrower signed
a note (“Note”) secured by the DOT. (Id.
failed to pay HOA assessments, and the HOA-through its agent
E. Alan Tiras, Esq. (“Tiras”) recorded a notice
of delinquent assessment lien (“First Notice”) in
August 2012, showing unpaid assessments of $786.25.
(Id. at 37.) Tiras recorded a notice of default and
election to sell on September 24, 2012, providing that a
subtotal of $1, 188.75 was owed. (Id. at 40.) The
HOA's ledger establishes that there was no assessment
balance on September 24, 2012 after a “Balance
Forward.” (ECF No. 69-2 at 2.)
November 19, 2012, Bank of America, N.A.
(“BANA”)-who is not disputed to have been the
beneficiary of the DOT and servicer of the Loan at the
time-through the law firm Miles, Bauer, Bergstrom &
Winters, LLP (“Miles Bauer”) requested that the
HOA send it “the HOA arrears as they currently
exists.” (ECF No. 69-1.) On December 18, 2012, Miles
Bauer sent the HOA another request for the same. (ECF No.
71-3.) On December 19, 2012, the HOA sent Miles Bauer a fax
response with a ledger indicating $510.00 was owing as of
December 16, 2012. (ECF No. 71-4.) On January 15, 2013, Miles
Bauer sent a fax to the HOA asking for the “updated
payoff statement through January 2013” and for
“the HOA arrears as they currently exists.” (ECF
No. 71-5.) On January 24, 2013, the HOA responded to Miles
Bauer with the following fax:
The fees are due the first of each month; late fees of 10%
are incurred when payment is not received prior to the 15th
day of the month. The amount due and owing on the account is
PLEASE NOTE: THE UNIT IS DELINQUENT AND COUNSEL HAS BEEN
CONTACTED AND ASKED TO PREPARE A NOTICE OF DELINQUENT
ASSESSMENT. THEREFORE, LEGAL FEES AND COSTS WILL BE
INCURREDAND CHARGED BACK TO THE OWNER.
(ECF No. 71-7.) The HOA's ledger also shows that the
amount of assessments due and owing as of February 1, 2013,
was $921.60. (Id. at 3.)
February 5, 2013, Tiras recorded a second notice of
delinquent assessment lien (“Second Notice”) with
the Washoe County Recorder's Office, providing the unpaid
total as $1, 149.60. (ECF No. 1 at 55.) On February 8, 2013,
Miles Bauer sent Tiras a letter and check for $921.60 as
“full” payment. (ECF No. 71-8.) On February 14,
2013, the HOA sent a letter in response to the February 8
Miles Bauer letter and also returned the check. (ECF No.
71-9.) The HOA's letter provided that due to additional
legal costs and fees the check was returned because the
balance increased to $1, 259.60. (Id.)
recorded a notice of default and election to sell on March
22, 2013, and a notice of foreclosure sale on July 1, 2013.
(ECF No. 70 at 43; ECF No. 77-1.) The HOA Sale occurred on
September 12, 2013, whereby Thunder purchased the Property
for $4, 012.22. (ECF No. 70 at 46-47.) /// An assignment was
recorded reflecting BONY's beneficial interest in the
Property on November 21, 2013. (Id. at 34.)
purpose of summary judgment is to avoid unnecessary trials
when there is no dispute as to the facts before the
court.” Nw. Motorcycle Ass'n v. U.S. Dep't
of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary
judgment is appropriate when the pleadings, the discovery and
disclosure materials on file, and any affidavits “show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). An issue is “genuine” if there
is a sufficient evidentiary basis on which a reasonable
fact-finder could find for the ...