United States District Court, D. Nevada
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT [ECF NO. 42]
P. GORDON UNITED STATES DISTRICT JUDGE.
Bank of New York Mellon (BONY) sues to determine whether a
deed of trust encumbering property located at 8101 W.
Flamingo Road #1118 in Las Vegas, Nevada was extinguished by
a nonjudicial foreclosure sale conducted by a homeowners
association (HOA), defendant Copper Sands Homeowners
Association, Inc. (Copper Sands). Defendant Saticoy Bay LLC
Series 8101 Flamingo (Saticoy) purchased the property at the
foreclosure sale. BONY seeks a declaration that the deed of
trust still encumbers the property and it asserts alternative
damages claims against Copper Sands and Copper Sands'
foreclosure agent, Defendant Alessi & Koenig, LLC
(Alessi). Saticoy counterclaims for declaratory relief that
it purchased the property free and clear of the deed of
moves for summary judgment, arguing a previous loan servicer,
Bank of America, tendered the superpriority amount prior to
the sale and thereby preserved the deed of trust. Saticoy
opposes BONY's motion. Copper Sands agrees with BONY that
the tender preserved the deed of trust. ECF No. 47 at 3.
Alessi did not respond to BONY's motion.
parties are familiar with the facts so I do not repeat them
here except where necessary. I grant BONY's motion
because 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
BONY's alternative damages claims against Copper Sands
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 either be “unconditional, or with
conditions on which the tendering party has a right to
insist.” Id. at 118.
has established that the superpriority amount was tendered in
full. The HOA assessment was $164.45 per month. ECF No. 42-6
at 12. Prior to the HOA foreclosure sale, Bank of America
tendered $2, 303.10 to Alessi to cover the superpriority
amount of nine months of assessments plus some collection
costs. Id. at 16-18. Alessi refused to accept the
check. Id. at 20. Saticoy 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 I nevertheless should not
grant summary judgment in BONY's favor. None precludes
Weighing the Equities
contends I should weigh the equities in its favor as a bona
fide purchaser. It also argues BONY waived its tender, should
be estopped from asserting it, and has unclean hands because
it did not take other action to stop the sale or inform
others about its tender attempt.
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, if tender was valid I do
not weigh the equities 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). Finally, BONY “has not waived its
right to protect its deed of trust, is not estopped from
asserting that right, nor does it have unclean hands because
it allowed [the HOA's] foreclosure to proceed without
interceding to halt the foreclosure” because Bank of
America satisfied the superpriority portion of the lien
before the foreclosure, so it “was under no obligation
to intercede or halt the foreclosure once it protected its
own interest.” Bank of New York Mellon v. Green
Valley S. Owners Ass'n, No. 1, No.
2:17-CV-2024-KJD-EJY, 2019 WL 4393356, at *6 (D. Nev. Sept.
13, 2019); see also Bank of Am., N.A., 427 P.3d at
119-21 (tender need not be recorded or deposited into court).