United States District Court, D. Nevada
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT, (2) DISMISSING AS MOOT PLAINTIFF'S DAMAGES
CLAIMS, AND (3) SETTING DEADLINE TO FILE MOTION FOR DEFAULT
JUDGMENT [ECF NO. 44]
P. GORDON UNITED STATES DISTRICT JUDGE.
Bank of New York Mellon (BONY) sues to determine whether a
deed of trust encumbering property located at 2691 Juniper
Hills #101 in Las Vegas, Nevada was extinguished by a
nonjudicial foreclosure sale conducted by a homeowners
association (HOA), defendant Pacific Harbors-Stonegate
Property Owners Association (Pacific). Defendant Blackrose
Investments, LLC (Blackrose) purchased the property at the
foreclosure sale and later quitclaimed the property to
defendant Deviation Investments LLC (Deviation). BONY seeks a
declaration that the deed of trust still encumbers the
property and it asserts alternative damages claims against
Pacific and Pacific's foreclosure agent, Defendant
Hampton & Hampton Collections, LLC
(Hampton). Deviation counterclaims for declaratory
relief that it purchased the property free and clear of the
deed of trust and to cancel the deed of trust.
moves for summary judgment, arguing its prior loan servicer,
Bank of America, tendered the superpriority amount prior to
the sale and thereby preserved the deed of trust. Deviation
and Pacific oppose BONY's motion but did not move for
summary judgment. Hampton and Blackrose have defaulted in
this action and did not respond to BONY's motion. ECF No.
parties are familiar with the facts so I do not repeat them
here except where necessary. I grant BONY'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 BONY's alternative damages
claims against Pacific and Hampton. Finally, I set a deadline
for BONY to either voluntarily dismiss its declaratory relief
claim against Blackrose or move for default judgment on that
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 $166 per month. ECF Nos. 44-6 at
7; 44-8 at 7. There were no nuisance abatement or maintenance
charges for this property. ECF No. 44-8 at 7-8. Prior to the
HOA foreclosure sale, Bank of America tendered $1, 494.00 to
Hampton to cover the superpriority amount of nine months of
assessments. ECF No. 44-6 at 10-12. Hampton accepted the
check, cashed it, and credited it to the delinquent account.
ECF No. 44-7 at 6; see also ECF No. 51-1 at 5-6.
Deviation contends that BONY has not proven delivery of the
tender check because BONY relies solely on copies of its own
letter and check. But Hampton's records show it accepted
the check and Deviation 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. I therefore dismiss as moot BONY's
alternative damages claims against Pacific and Hampton.
leaves BONY's declaratory relief claim against Blackrose.
BONY must now either dismiss that claim or move for default
judgment on it. If it does not, I will dismiss the claim.
THEREFORE ORDER that plaintiff Bank of New York Mellon's
motion for summary judgment (ECF No. 44) is
GRANTED. It is declared that the homeowners
association's nonjudicial foreclosure sale conducted on
September 9, 2014 did not extinguish the deed of trust and
the property located at 2691 Juniper Hills #101 in Las Vegas,
Nevada remains subject to the deed of trust.
FURTHER ORDER that plaintiff Bank of New York Mellon's
alternative damages claims against defendants Pacific
Harbors-Stonegate Property Owners Association and Hampton
& Hampton Collections, LLC are DISMISSED as moot.
FURTHER ORDER that by February 7, 2020, Bank of New York
Mellon must either move for default judgment or voluntarily
dismiss its claim against defendant Blackrose Investments,
LLC. If it does not take either of these ...