United States District Court, D. Nevada
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT ON TENDER; (2) DENYING PLAINTIFF'S SECOND MOTION
FOR SUMMARY JUDGMENT AS MOOT; (3) DENYING SFR'S MOTION
FOR SUMMARY JUDGMENT; (4) GRANTING IN PART PECOS'S MOTION
FOR SUMMARY JUDGMENT; AND (5) DISMISSING PLAINTIFF'S
NEGLIGENCE CLAIMS AS MOOT [ECF NOS. 87, 89, 97, 99]
P. GORDON UNITED STATES DISTRICT JUDGE
Bank of New York Mellon (BONY) sues to determine whether its
deed of trust encumbering property located at 6305 Legend
Falls Street in North Las Vegas, Nevada was extinguished by a
nonjudicial foreclosure sale conducted by a homeowners
association (HOA), defendant Pecos Park-Sunflower Homeowners
Association (Pecos). Defendant SFR Investments Pool 1, LLC
(SFR) purchased the property at the foreclosure sale. BONY
seeks a declaration that its deed of trust still encumbers
the property and it asserts damages claims against Pecos. SFR
counterclaims for declaratory relief and to quiet title in
parties move for summary judgment on a variety of grounds.
The parties are familiar with the facts so I do not repeat
them here except where necessary. I grant BONY's motion
and deny SFR's motion because no genuine dispute remains
that BONY tendered the superpriority amount, thereby
extinguishing the superpriority lien and rendering the sale
void as to the deed of trust. I deny BONY's alternative
motion for summary judgment as moot. I grant in part
Pecos's motion because the sale will not be set aside, so
it is no longer a proper party to BONY's declaratory
relief claim and BONY cannot prevail on a wrongful
foreclosure claim against Pecos. I dismiss as moot BONY's
negligence claims against Pecos because those were explicitly
pleaded in the alternative to the declaratory relief claim.
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).
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 be either “unconditional, or with
conditions on which the tendering party has a right to
insist.” Id. at 118.
has met its burden of establishing that its prior servicer,
Bank of America, N.A. (BANA), tendered the superpriority
amount in full. The monthly HOA assessment was $35.25 per
month. ECF No. 87-1 at 26. Prior to the HOA foreclosure sale,
BANA tendered $317.25 to Pecos's foreclosure agent,
Nevada Association Services, Inc. (NAS), to cover the
superpriority amount of nine months of assessments. ECF No.
87-2 at 11-17. NAS refused to accept the check. Id.
at 4, 17. SFR has presented no contrary evidence in response.
Consequently, no genuine dispute remains that the
superpriority lien was extinguished and the property remains
subject to the deed of trust. Bank of Am., N.A., 427
P.3d at 121.
raises several arguments as to why tender did not extinguish
the superpriority lien. None raises a genuine dispute
precluding summary judgment.
contends BONY has presented no evidence that BANA was the
prior servicer on the loan. It also argues that BONY cannot
rely on Doug Miles' affidavit because BONY did not
disclose him as a witness in discovery, and in any event
Miles lacks knowledge to authenticate the documents attached
to his affidavit and there is inadmissible hearsay within
those documents. SFR thus argues BONY has not shown that it
tendered the proper superpriority amount.
responds that the ledger is authenticated by a custodian of
records affidavit from NAS and that the ledger does not show
any charges for maintenance or nuisance abatement, nor is
there any other evidence of such charges. BONY argues Miles
can authenticate the runner slip showing that the tender
check was delivered to NAS because it is part of the records
of law firm Miles Bauer Bergstrom Winters LLP (Miles Bauer)
and qualifies as nonhearsay under the business records
does not explain why it matters whether BANA was the prior
servicer on the loan. Even if BANA was not the servicer, BANA
could have satisfied the superpriority lien. Cf. Saticoy
Bay LLC v. JPMorgan Chase Bank, No. 71246, 408 P.3d 558,
2017 WL 6597154, at *1 (Nev. 2017) (holding no superpriority
lien remained after homeowner made payments sufficient to
satisfy the superpriority amount and the HOA applied those
payments to the ...