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Bank of New York Mellon v. Thunder Properties, Inc.

United States District Court, D. Nevada

August 26, 2019

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,
v.
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.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This 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.)[1] 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).

         II. BACKGROUND

         The following facts are undisputed unless otherwise noted.[2]

         In 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. at 8-10.)

         Borrower 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.)

         On 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 $921.60.
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.)

         On 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.)

         The HOA 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.)

         III. LEGAL STANDARD

         “The 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 ...


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