United States District Court, D. Nevada
ORDER (1) GRANTING DEUTSCHE AND NATIONSTAR'S
MOTION FOR SUMMARY JUDGMENT; (2) GRANTING IN PART SFR'S
MOTION FOR SUMMARY JUDGMENT; AND (3) DISMISSING
DEUTSCHE'S DAMAGES CLAIMS AS MOOT [ECF NOS. 104,
P. GORDON UNITED STATES DISTRICT JUDGE.
Deutsche Bank National Trust Company (Deutsche) sues to
determine whether its deed of trust encumbering property
located at 1444 European Drive in Henderson, Nevada was
extinguished by a nonjudicial foreclosure sale conducted by a
homeowners association (HOA), defendant Seven Hills Master
Community (Seven Hills). Defendant SFR Investments Pool 1,
LLC (SFR) purchased the property at the foreclosure sale.
Deutsche seeks a declaration that its deed of trust still
encumbers the property and it asserts damages claims against
Seven Hills. SFR counterclaims and crossclaims to quiet title
and cross-defendant Nationstar Mortgage, LLC move for summary
judgment. SFR also moves for summary judgment. The parties
are familiar with the facts so I do not repeat them here
except where necessary. I grant Deutsche and Nationstar's
motion and deny in part SFR's motion because no genuine
dispute remains that Deutsche's predecessor tendered the
superpriority amount, thereby extinguishing the superpriority
lien and rendering the sale void as to the deed of trust. I
dismiss as moot Deutsche's damages claims against Seven
Hills because those claims were pleaded in the alternative to
the declaratory relief claim. I grant SFR's motion in
part to quiet title in SFR vis-à-vis the prior
homeowner, Valorie Holcomb.
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).
Deutsche's Declaratory Relief Claim
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 predecessor, Bank
of America, N.A. (BANA), tendered the superpriority amount in
full. The monthly HOA assessment was $50 per month. ECF Nos.
104-9 at 12; 104-10 at 3. Prior to the HOA foreclosure sale,
BANA tendered $450 to Seven Hills' foreclosure agent,
Leach Johnson Song & Gruchow (Leach), to cover the
superpriority amount of nine months of assessments. ECF Nos.
104-9 at 14-16; 104-11. Leach received the check. ECF No.
104-11. SFR has presented no contrary evidence. 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.
argues that Deutsche cannot rely on Doug Miles' affidavit
because Deutsche did not disclose him as a witness in
discovery. Deutsche responds that it disclosed that it was
relying on the Rule 30(b)(6) witness from Miles Bauer and
provided the affidavit, so it disclosed the relevant witness
and SFR is not prejudiced.
position is difficult to understand given that Deutsche
attached Miles' declaration to a prior motion for summary
judgment in this case. ECF No. 77-11; see also ECF
No. 113-1 (Deutsche and Nationstar's third supplement to
initial disclosures dated March 2016 disclosing person most
knowledgeable from Miles Bauer and disclosing Miles'
affidavit). SFR thus had known about Miles and the content of
his declaration for three years by the time the second round
of summary judgment briefing took place.