United States District Court, D. Nevada
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND (2) DENYING DEFENDANT WESTCHESTER'S MOTION
FOR SUMMARY JUDGMENT [ECF NOS. 52, 53]
P. GORDON UNITED STATES DISTRICT JUDGE.
Bank of New York Mellon (BONY) sues to determine whether its
deed of trust encumbering property located at 9153 Whatley
Street located in Las Vegas, Nevada was extinguished by a
nonjudicial foreclosure sale conducted by a homeowners
association (HOA), defendant Westchester Hills
Homeowners' Association (Westchester). Defendant Premier
One Holdings, Inc. (Premier) purchased the property at the
foreclosure sale. Premier then encumbered the property with a
short form deed of trust with assignment of rents to
defendant Ling Yun Qui (Qui). BONY seeks a declaration that
its deed of trust still encumbers the property.
moves for summary judgment, arguing that its predecessor,
Bank of America, tendered the superpriority amount and
thereby preserved the deed of trust. Premier opposes
BONY's motion but did not move for summary judgment. Qui
did not respond to the motion. Westchester moves for summary
judgment, arguing that it complied with all of the statutory
requirements to properly foreclose on its lien and there is
no fraud, unfairness, or oppression to justify setting aside
the foreclosure sale.
parties are familiar with the facts so I do not repeat them
here except where necessary. I grant BONY's motion and
deny Westchester's motion because Bank of America
tendered the superpriority amount, so Premier took title to
the property subject to the deed of trust.
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 Invs.
Pool 1, LLC, 427 P.3d 113, 116 (Nev. 2018) (en banc). To
be valid, tender must be for “payment in full”
and must either be “unconditional, or with conditions
on which the tendering party has a right to insist.”
Id. at 118.
is no genuine dispute that Bank of America paid the
superpriority amount in full. The monthly HOA assessment was
$66.00 per quarter. ECF No. 52-5 at 3. Prior to the HOA
foreclosure sale, Bank of America tendered $594.00 to cover
the superpriority amount. ECF No. 52-8.
nevertheless argues that I should deny BONY's motion.
First, it argues that BONY failed to pay the HOA assessments
as they became due even though it was instructed to do so by
the U.S. Department of Housing and Urban Development for
properties insured through the Federal Housing Administration
(FHA) insurance program. Next, it contends there is no
evidence BONY kept the tender good. Finally, Premier argues
that I should weigh the equities, which favor Premier. None
of these arguments precludes summary judgment.
Premier's first argument, it has presented no evidence
that this is an FHA-insured loan. As to its second argument,
BONY “need only be ready and willing to pay to keep the
tender good.” Bank of Am., N.A., 427 P.3d at
121. Bank of America sent a check for the superpriority
amount and there is no evidence that it did not have
sufficient funds to cover the amount of the check. Finally, I
do not weigh the equities because Bank of America's
tender preserved the deed of trust by operation of law.
Id. at 120.
the valid tender cured the default as to the superpriority
portion of the HOA's lien, so the HOA's foreclosure
on the entire lien resulted in a void sale as to the
superpriority portion. As a result, the property remains
subject to the deed of trust. I therefore grant BONY's
motion for summary judgment and I deny Westchester's
motion for summary judgment.
THEREFORE ORDER that defendant Westchester Hills
Homeowners' Association's motion for summary ...