United States District Court, D. Nevada
U.S. BANK NATIONAL ASSOCIATION, Plaintiff
ZILIAN OU, et al., Defendants
ORDER (1) GRANTING SFR AND ARLINGTON'S MOTIONS
FOR SUMMARY JUDGMENT, (2) DENYING SFR'S MOTION TO DISMISS
AS MOOT, (3) DENYING U.S. BANK'S MOTION FOR SUMMARY
JUDGMENT, AND (4) SETTING DEADLINE FOR PRETRIAL ORDER OR
STATUS REPORT [ECF NOS. 23, 35, 36, 37]
P. GORDON, UNITED STATES DISTRICT JUDGE
U.S. Bank National Association sues to determine whether its
deed of trust encumbering property located at 9010 Harbor
Wind Avenue located in Las Vegas, Nevada was extinguished by
a nonjudicial foreclosure sale conducted by a homeowners
association (HOA), defendant Arlington West Twilight
Homeowners Association (Arlington). Defendant SFR Investments
Pool 1, LLC (SFR) purchased the property at the foreclosure
sale. U.S. Bank seeks a declaration that its deed of trust
still encumbers the property and it asserts damages claims
against Arlington. U.S. Bank also brings a claim for judicial
foreclosure against the borrower, defendant Zilian Ou, on the
deed of trust that secures the loan U.S. Bank made to Ou.
moves to dismiss and for summary judgment, asserting that
U.S. Bank's declaratory relief claim is
untimely. SFR also argues that the sale is
presumptively valid and U.S. Bank cannot overcome that
presumption. Arlington separately moves for summary judgment,
contending all of U.S. Bank's claims against it are
Bank opposes SFR's and Arlington's motions and moves
for summary judgment on its declaratory relief claim, arguing
that its predecessor, Bank of America, tendered the
superpriority amount before the sale, thereby satisfying the
superpriority lien and preserving the deed of trust. U.S.
Bank contends that all of its claims are timely or,
alternatively, that SFR and Arlington have waived the statute
of limitations defense or should be estopped from asserting
it. U.S. Bank also argues equitable tolling applies because
it did not learn of the sale right away and it believed that
a pre-sale tender of the superpriority amount preserved the
deed of trust. U.S. Bank argues its damages claims are timely
because the statute of limitations has not been triggered
where the deed of trust has not been declared invalid.
Alternatively, it argues its damages claims run from the date
the Supreme Court of Nevada issued the decision in SFR
Investments Pool 1, LLC v. U.S. Bank, N.A., 334 P.3d 408
(Nev. 2014) (en banc).
parties are familiar with the facts so I do not repeat them
here except where necessary. I grant SFR's and
Arlington's motions for summary judgment and deny U.S.
Bank's motion because U.S. Bank's claims against them
are time-barred. I deny SFR's motion to dismiss as moot.
Finally, I order the parties to submit either a joint
pretrial order or a status report regarding the remaining
judicial foreclosure 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).
previously ruled that the four-year catchall limitation
period in Nevada Revised Statutes § 11.220 applies to
claims under § 40.010 brought by a lienholder seeking to
determine whether an HOA sale extinguished its deed of trust.
See Bank of Am., N.A. v. Country Garden Owners
Ass'n, No. 2:17-cv-01850-APG-CWH, 2018 WL 1336721,
at *2 (D. Nev. Mar. 14, 2018). Claims for breach of Nevada
Revised Statutes § 116.1113, wrongful foreclosure, and
violations of the Nevada Deceptive Trade Practices Act
(NDTPA) are governed by limitation periods of four years or
less. See Bank of New York for Certificateholders of
CWALT, Inc. v. S. Highlands Cmty. Ass'n, 329
F.Supp.3d 1208, 1219 (D. Nev. 2018) (three or four years for
wrongful foreclosure); Nationstar Mortg. LLC v. Amber
Hills II Homeowners Ass'n, No.
2:15-cv-01433-APG-CWH, 2016 WL 1298108, at *5 (D. Nev. Mar.
31, 2016) (stating that a § 116.1113 claim is governed
by a three-year limitation period in Nev. Rev. Stat. §
11.190(3)(a)); Nev. Rev. Stat. § 11.190(2)(d) (four
years for NDTPA).
foreclosure sale took place on January 9, 2013. ECF No. 37-6.
The deed upon sale was recorded on January 11, 2013.
Id. U.S. Bank's evidence shows that its
predecessor's agent knew that the property had been sold
as of February 12, 2013. ECF No. 35-11 at 7. U.S. Bank
accepted the assignment of the deed of trust in April 2017.
ECF No. 35-5. U.S. Bank filed its complaint about two weeks
later, on May 11, 2017. ECF No. 1. U.S. Bank's claims
thus are untimely because the complaint was filed more than
four years after Bank of America's agent learned of the
previously rejected arguments similar to the ones U.S. Bank
makes that its declaratory relief claim is not subject to a
statute of limitations, that the limitation period runs from
the date the Supreme Court of Nevada issued the opinion in
SFR Investments Pool 1, LLC v. U.S. Bank, N.A., that
its declaratory relief claim is a defense to a potential
wrongful foreclosure claim by SFR and so is not subject to a
limitation period, and that its damages claims are not ripe.
See Bank of New York Mellon Tr. Co., Nat'l Ass'n
v. SFR Investments Pool 1, LLC, No.
2:18-cv-00978-APG-CWH, 2019 WL 982378, at *2 (D. Nev. Feb.
28, 2019); Bank of New York for Certificateholders of
CWALT, Inc., 329 F.Supp.3d at 1213-14, 1220; Country
Garden Owners Ass'n, 2018 WL 1336721, at *3. I again
reject those arguments here.
Bank raises a new argument: that because its
predecessor's tender “preserved the deed of trust
by operation of law, the court need not reach SFR's
statute of limitations argument.” ECF No. 42 at 3. But
whether tender preserved the deed of trust by operation of
law and whether U.S. Bank timely filed suit to obtain a
judicial declaration to that effect are two different things.
A four-year limitation period applies to U.S. Bank's
declaratory relief claim regardless of whether it tendered.
later than February 2013, U.S. Bank's predecessor, Bank
of America, knew the content of the HOA's Covenants,
Conditions, and Restrictions (CC&Rs) and foreclosure
notices, that Bank of America had tendered, that Arlington
had not accepted tender, and that the property had been sold
at an HOA foreclosure sale for $10, 000. See ECF No.
35-18 at 2. Thus, as of February 2013, Bank of America knew
the facts supporting U.S. Bank's contention that the HOA
foreclosure sale did not extinguish the deed of trust due to
tender, a violation of the CC&Rs, lack of proper notice,
and sale for an inadequate price. See Country Garden
Owners Ass'n, 2018 WL 1336721, at *3; Nationstar
Mortg., LLC v. Falls at Hidden Canyon Homeowners
Ass'n, No. 2:15-cv-01287-RCJ-NJK, 2017 WL 2587926,
at *2 (D. Nev. June 14, 2017) (holding the plaintiff's
predecessor-in-interest “could have asserted claims for
violation of NRS 116.113 and wrongful foreclosure as soon as
it obtained facts to support a contention that the HOA's
sale of the Property was improper”). U.S. Bank does not
identify any other fact that it or Bank of America discovered
after the HOA foreclosure sale that would extend the
limitation period for its claims. Its claims thus are
Waiver, Estoppel, and ...