United States District Court, D. Nevada
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT, (2) DENYING DEFENDANTS' MOTIONS FOR SUMMARY
JUDGMENT, AND (3) SETTING FOR FURTHER ACTION [ECF NOS. 109,
ANDREWR GORDON, UNITED STATES DISTRICT JUDGE.
Bank of America, N.A. sues to determine whether a deed of
trust encumbering property located at 6616 MacDoogle Street
in Las Vegas, Nevada was extinguished by a nonjudicial
foreclosure sale conducted by a homeowners association (HOA),
defendant Auburn and Bradford at Providence Homeowners'
Association (Auburn). Defendant SFR Investments Pool 1, LLC
(SFR) purchased the property at the foreclosure sale. Bank of
America seeks a declaration that the deed of trust still
encumbers the property and it asserts alternative damages
claims against Auburn and Auburn's foreclosure agent,
defendant Nevada Association Services, Inc. (NAS). SFR
counterclaims for declaratory relief that it purchased the
property free and clear of the deed of trust. SFR also filed
a declaratory relief cross-claim against the former
homeowners, Donald A. Novick and Laurene Novick.
America moves for summary judgment, arguing that it tendered
the superpriority amount prior to the HOA foreclosure sale
and thereby preserved the deed of trust. Auburn moves for
summary judgment, arguing Bank of America's claims are
untimely or barred by laches. Auburn also argues that it
complied with Nevada law and there was nothing wrongful about
the foreclosure. Finally, Auburn contends Bank of America
failed to plead and prove attorney's fees as special
damages. SFR moves for summary judgment, arguing Bank of
America's declaratory relief claim is untimely. In its
opposition to Bank of America's motion, SFR argues that
the equities weigh in its favor as a bona fide purchaser.
parties are familiar with the facts so I do not repeat them
here except where necessary. I grant Bank of America's
motion and deny SFR's motion because no genuine dispute
remains that Bank of America tendered the superpriority
amount, thereby extinguishing the superpriority lien and
rendering the sale void as to the deed of trust. I dismiss as
moot Bank of America's damages claims against Auburn and
NAS, so I deny Auburn's motion. Finally, I set a deadline
for SFR to either move for default judgment against the
Novicks or to voluntarily dismiss its cross-claim against
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).
Statute of Limitations
motion and opposition, SFR presents its latest iteration of
its statute of limitations argument. I have considered
SFR's arguments, but I decline to reconsider my position
that the four-year catchall limitation period applies to Bank
of America's declaratory relief claim. See Bank of
Am., N.A. v. Ladera Homeowner's Ass'n, No.
2:16-cv-00394-APG-EJY, 2019 WL 6174310, at *2 (D. Nev. Nov.
20, 2019); 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). Because Bank of America's
complaint was brought within four years of the HOA
foreclosure sale and recordation of the foreclosure deed, its
declaratory relief claim is timely. See ECF Nos. 1;
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 either be “unconditional, or with
conditions on which the tendering party has a right to
insist.” Id. at 118.
America has established that it tendered the superpriority
amount in full. The HOA assessment was $144 per quarter. ECF
Nos. 109-6 at 9; 109-7 at 8. Prior to the HOA foreclosure
sale, Bank of America tendered $432 to NAS to cover the
superpriority amount of nine months of assessments. ECF No.
109-6 at 11-13. NAS refused to accept the check. Id.
at 17-19. SFR has presented no contrary evidence in response.
Consequently, no genuine dispute remains that Bank of America
tendered, 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.
of the superpriority portion of an HOA lien satisfies that
portion of the lien by operation of law.” Bank of
Am., N.A., 427 P.3d at 120. Because “valid tender
cured the default as to the superpriority portion of the
HOA's lien, the HOA's foreclosure on the entire lien
resulted in a void sale as to the superpriority
portion.” Id. at 121. A “party's
status as a [bona fide purchaser] is irrelevant when a defect
in the foreclosure proceeding renders the sale void.”
Id. For these same reasons, I do not weigh the
equities if tender was valid because “the voiding of
the foreclosure sale as to the superpriority portion of the
lien is ultimately the result of the operation of law and not
equitable relief.” Salomon v. Bank of Am.,
N.A., No. 75200-COA, 2019 WL 3231009, at *2 n.3 (Nev.
App. July 17, 2019).
Bank of America tendered the superpriority portion of the
HOA's lien, thereby rendering the sale void as to the
deed of trust. SFR has not presented evidence raising a
genuine dispute in response. ...