United States District Court, D. Nevada
J. Dawson United States District Judge
before the Court is Defendant LVDG, LLC’s Motion for
Summary Judgment (#51). Plaintiff filed a response in
opposition (#60) to which Defendant LVDG replied (#69).
before the Court is Defendant Leach Johnson Song &
Gruchow LTD’s Motion for Summary Judgment (#57).
Plaintiff filed a response in opposition (#64) to which Leach
Johson replied (#75).
before the Court is Defendant Inspirada Community
Association’s Motion for Summary Judgment (#58).
Plaintiff filed a response in opposition (#65) to which
Inspirada replied (#74).
before the Court is Plaintiff Bank of America, N.A.’s,
Motion for Partial Summary Judgment (#59). Defendant
Inspirada Community Association (“Inspirada”)
filed a response in opposition (#66). Defendant Leach Johnson
Song & Gruchow LTD (“Leach Johnson”) also
filed a response in opposition (#67). Defendant LVDG also
filed a response in opposition (#68). Plaintiff filed a
unified reply (#76) to the oppositions. Plaintiff has also
filed a Motion for Leave to File Supplemental Authority (#63)
in support of its motion. Defendant LVDG filed a response
(#70) to which Plaintiff replied (#71).
about October 22, 2008, Robert and Judy Colegrove
(“Borrowers”) purchased a home at 3233 Via
Seranova, Henderson, NV 89044 (“the Property”).
The Property is subject to the Declaration of Covenants,
Conditions & Restrictions and Reservations of Easements
(“CC&Rs”) of Defendant Inspirada Community
Association (“Inspirada” or “the
Association”). Borrowers failed to pay the Association
assessments due under the CC&Rs. As a result of
Borrower’s failure to pay assessments, on March 25,
2011, a Notice of Delinquent Assessment was recorded with the
Clark County Recorder’s office.
2, 2011, a Notice of Default and Election to Sell was
recorded against the Property. On July 5, 2011, Leach Johnson
received a letter from BANA’s agent, law firm Miles,
Bauer, Bergstrom & Winters, LLP (“Miles
Bauer”), in which BANA offered to pay nine months
assessments and asking for “a breakdown of the HOA
arrears.” Instead of simply informing the agent of the
amount of the superpriority lien, Leach Johnson responded on
July 6, 2011 asserting that “[p]ursuant to NRS and NAC
Chapter 116, including NRS 116.31175 and NAC 116.405, the
Association may not disclose confidential owner account
information to anyone other than the owner unless the
disclosure is authorized by the owner.” Attached to the
July 6, 2011 letter was an Authorization to Release Unit
Owner’s Assessment Account Records to allow the Bank to
obtain the authorization of Borrowers. Leach Johnson advised
Miles Bauer that once he obtained the consent of the
borrower, it would release the owner account information to
the Bank to allow it to submit a payoff. The Bank neither
responded, nor did it obtain the consent of Borrowers to
allow the Association to release the account information.
April 30, 2012, a Notice of Foreclosure Sale was recorded
against the Property. The Notice of Sale was mailed to the
Borrowers, BAC Home Loans Services, LP, MERS and others. On
August 22, 2013, the Property was sold at foreclosure to LVDG
LLC Series 128 for $8, 200.00. Plaintiff BANA then filed the
present action. The parties have each filed summary judgment
seeking a declaration as to whether Inspirada’s
foreclosure extinguished BANA’s lien or whether LVDG
purchased the property subject to the lien.
Standard for Summary Judgment
purpose of summary judgment is to avoid unnecessary trials by
disposing of factually unsupported claims or defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24
(1986); Nw. Motorcycle Ass’n v. U.S. Dept. of
Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). It is
available only where the absence of material fact allows the
Court to rule as a matter of law. Fed.R.Civ.P. 56(a);
Celotex, 477 U.S. at 322. Rule 56 outlines a burden
shifting approach to summary judgment. First, the moving
party must demonstrate the absence of a genuine issue of
material fact. The burden then shifts to the nonmoving party
to produce specific evidence of a genuine factual dispute for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). A genuine issue of fact
exists where the evidence could allow “a reasonable
jury [to] return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court views the evidence and draws all available
inferences in the light most favorable to the nonmoving
party. Kaiser Cement Corp. v. Fischbach & Moore,
Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). Yet, to
survive summary judgment, the nonmoving party must show more
than “some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 586.
has filed for summary judgment on its claims and the opposing
parties have filed for summary judgment on the claims against
them. For the reasons stated below, the Court finds that
BANA’s deed of trust was extinguished by the
HOA’s foreclosure of its superpriority lien. Therefore,
BANA’s motion for summary judgment is denied and
Defendants’ motions for summary judgment are granted.
Foreclosure of the Superpriority Lien
America contends that its attempt to ascertain and pay the
superpriority amount of Inspirada’s lien constituted
valid tender and preserved its deed of trust. The Nevada
Supreme Court has addressed whether valid tender preserves a
lender’s deed of trust in a series of recent cases. In
Bank of America, N.A. v. SFR Invs. Pool 1, LLC, the
Court definitively held that a lender’s valid tender
prior to the association’s foreclosure preserves the
lender’s first deed of trust. 427 P.3d 113, 118 (Nev.
2018) (“Diamond Spur”). Tender is valid
if (1) it pays the entire superpriority lien (id. at
117) and (2) it is unconditional or insists only on
conditions the tendering party has a right to insist upon
(id. at 118). The tendering party is under no
obligation to “keep [the tender] good” or deposit
the tender into an escrow or court-established account.
Id. at ...