United States District Court, D. Nevada
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND (2) DENYING DEFENDANTS' MOTIONS FOR SUMMARY
JUDGMENT [ECF NOS. 53, 54, 64]
P. GORDON UNITED STATES DISTRICT JUDGE.
Bank of New York Mellon (BONY) sues to determine whether a
deed of trust encumbering property located at 6108 Dogwood
Falls Court in North Las Vegas, Nevada was extinguished by a
nonjudicial foreclosure sale conducted by a homeowners
association (HOA), defendant Azure Estates Owners Association
(Azure). Falls Family Trust purchased the property at the
foreclosure sale and later quitclaimed the property to
defendant Ricardo Fojas (Fojas). BONY seeks a declaration
that the deed of trust still encumbers the property and it
asserts alternative damages claims against Azure and
Azure's foreclosure agent, defendant Nevada Association
Services, Inc. (NAS). BONY also seeks to judicially foreclose
on the former homeowners, defendants Michael and Stephanie
Rumpel, or alternatively to obtain damages against Michael
Rumpel for breach of contract. Fojas counterclaims for
declaratory relief that the HOA sale extinguished the deed of
trust. Fojas also filed cross-claims against Azure and NAS
for damages if it is determined that the deed of trust
survived the foreclosure sale.
moves for summary judgment, arguing that its prior loan
servicer, BAC Home Loans Servicing, LP (BAC), tendered the
superpriority amount and thereby preserved the deed of trust.
Azure moves for summary judgment, arguing it had a good faith
basis to reject the tender, the tender was impermissibly
conditional, and there is no basis for the damages claims
against it because there was nothing wrongful about the
foreclosure. Fojas moves for summary judgment, adopting
Azure's good faith argument and arguing that the equities
weigh in his favor as a bona fide purchaser. Fojas argues for
the first time in his reply brief that the tender should have
been recorded. He also argues for the first time in his reply
brief that BONY's motion should be denied as premature
because the judicial foreclosure claim is still pending and
the Rumpels have not filed an answer to the complaint.
parties are familiar with the facts so I do not repeat them
here except where necessary. I grant BONY's motion and
deny Azure's and Fojas's motions because no genuine
dispute remains that BAC 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 Azure and NAS.
BONY's judicial foreclosure and alternative breach of
contract claims and Fojas's cross-claims against Azure
and NAS remain pending because no party moved for judgment on
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 $42 per quarter. ECF Nos. 54-12
at 10; 54-13 at 3. Prior to the HOA foreclosure sale, BAC
tendered $126 to NAS to cover the superpriority amount of
nine months of assessments. ECF No. 54-12 at 13-17. NAS
refused to accept the check. Id. at 17. Azure and
Fojas have 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.
and Fojas raise several arguments as to why tender
nevertheless did not extinguish the superpriority lien. None
raises a genuine dispute precluding summary judgment.
Good Faith Rejection of Tender
and Fojas argue that NAS rejected the tender in good faith
because BAC did not offer to pay the entire amount of the
HOA's lien. But Azure and Fojas present no evidence as to
why NAS rejected the tender or that it did so in good faith.
Moreover, the Supreme Court of Nevada has rejected similar
arguments in similar cases. See, e.g.,
Nationstar Mortg., LLC v. Jackel Properties, LLC,
No. 75040, 435 P.3d 1224, 2019 WL 1244787, at *1 (Nev. 2019)
(stating that the foreclosure agent's “subjective
good faith in rejecting the tender is legally irrelevant, as
the tender cured the default as to the superpriority portion
of the lien by operation of law”).
contends that the tender letter included an impermissible
condition that the HOA waive or subordinate its right to the
portion of the superpriority lien consisting of maintenance
and nuisance abatement charges. The Supreme Court of Nevada
has held that where there is no evidence of maintenance or
nuisance abatement charges, identical tender letters did not
impose impermissible conditions on tender. Here, there is no
evidence of maintenance or nuisance abatement charges, so the
tender letter did not contain impermissible conditions.
Additionally, if such charges arose later, the HOA
“would have been required to issue new foreclosure
notices if it sought to afford those costs superpriority
status.” Doreen Properties, LLC v. U.S. Bank
Nat'l Ass'n as Tr. for Holders of Bear Sterns Alt-A
Tr. 2006-3, No. 75885-COA, 2019 WL 2474893, at *1 (Nev.
App. June 12, 2019) (citing Property Plus ...