Bank of America, N.A. v. Ann Losee Homeowners' Association et al

Filing 48

ORDER denying 36 Motion for Summary Judgment.; denying 37 Motion for Summary Judgment. Signed by Judge James C. Mahan on 5/18/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BANK OF AMERICA, N.A.,

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Plaintiff(s),

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Case No. 2:16-CV-407 JCM (CWH)
ORDER

v.
ANN LOSEE HOMEOWNERS
ASSOCIATION, et al.,
Defendant(s).

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Presently before the court is plaintiff Bank of America, N.A., successor by merger to BAC

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Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP’s (“BANA”) motion for
summary judgment. (ECF No. 36). Defendant Ann Losee Homeowners’ Association (the
“HOA”) (ECF No. 39) and defendants Arkham, LLC and Arkham XIII, LLC (ECF No. 40) filed
responses, to which BANA replied (ECF Nos. 45, 46, respectively).
Also before the court is the HOA’s motion for summary judgment. (ECF No. 37). BANA

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James C. Mahan
U.S. District Judge

filed a response (ECF No. 38), to which the HOA replied (ECF No. 47).
I.

Facts
This case involves a dispute over real property located at 2317 Clarington Avenue, North

Las Vegas, Nevada (the “property”). On November 21, 2009, Paul Borin obtained a loan from
First Option Mortgage in the amount of $204,355.00, which was secured by a deed of trust
recorded on November 30, 2009. (ECF No. 1).
The deed of trust was assigned to BANA via an assignment of deed of trust recorded on
November 14, 2011. (ECF No. 1).

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On November 19, 2013, defendant Absolute Collection Services, LLC (“ACS”), acting on

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behalf of the HOA, recorded a notice of delinquent assessment lien, stating an amount due of

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$1,668.83. (ECF No. 1). On January 8, 2014, ACS recorded a notice of default and election to

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sell to satisfy the delinquent assessment lien, stating an amount due of $2,385.68. (ECF No. 1).

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On February 3, 2014, BANA requested a ledger from the HOA/ACS identifying the

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superpriority amount allegedly owed to the HOA. (ECF No. 1). The HOA/ACS provided a ledger

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dated February 19, 2014, stating a superpriority amount owed of $2,104.35 and a total owed of

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$6,553.45. (ECF No. 1). BANA calculated the superpriority amount to be $180.00 and tendered

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that amount to ACS on March 3, 2014, which the HOA allegedly accepted. (ECF No. 1).

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On April 30, 2014, ACS recorded a notice of trustee’s sale, stating an amount due of

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$3,843.76 and scheduling the sale for June 17, 2014. (ECF No. 1). On June 17, 2014, defendant

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Nevada New Builds, LLC (“NNB”) purchased the property at the foreclosure sale for $9,000.00.

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(ECF No. 1). A foreclosure deed in favor of NNB was recorded on June 19, 2014. (ECF No. 1).

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NNB transferred the property to defendant Janet Garcia (“Garcia”) by a deed of sale

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recorded on July 23, 2014. (ECF No. 1). Thereafter, Garcia transferred the property to defendant

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Arkham, LLC (“Arkham”) by quitclaim deed recorded on May 1, 2015.

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Subsequently, Arkham, LLC transferred the property to defendant Arkham XIII, LLC (“Arkham

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XIII”) by a grant, bargain, sale deed recorded on May 11, 2015. (ECF No. 1).

(ECF No. 1).

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On February 26, 2016, BANA filed the underlying complaint, alleging four claims of relief:

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(1) quiet title/declaratory judgment against all defendants; (2) breach of NRS 116.1113 against

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ACS and the HOA; (3) wrongful foreclosure against ACS and the HOA; and (4) injunctive relief

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against Arkham XIII. (ECF No. 1).

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James C. Mahan
U.S. District Judge

On May 20, 2016, Arkham and Arkham XIII filed a counterclaim against BANA alleging
two claims for relief: (1) quiet title; and (2) cancellation of instruments. (ECF No. 26).
On December 19, 2016, the court dismissed claims (2) through (4) of BANA’s complaint.
(ECF No. 35).
In the instant motions, BANA and the HOA both move for summary judgment. (ECF Nos.
36, 37). The court will address each as it sees fit.

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II.

Legal Standard

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The Federal Rules of Civil Procedure allow summary judgment when the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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show that “there is no genuine dispute as to any material fact and the movant is entitled to a

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judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is

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“to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317,

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323–24 (1986).

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For purposes of summary judgment, disputed factual issues should be construed in favor

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of the non-moving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be

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entitled to a denial of summary judgment, the nonmoving party must “set forth specific facts

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showing that there is a genuine issue for trial.” Id.

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In determining summary judgment, a court applies a burden-shifting analysis. The moving

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party must first satisfy its initial burden. “When the party moving for summary judgment would

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bear the burden of proof at trial, it must come forward with evidence which would entitle it to a

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directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has

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the initial burden of establishing the absence of a genuine issue of fact on each issue material to

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its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000)

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(citations omitted).

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By contrast, when the nonmoving party bears the burden of proving the claim or defense,

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the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential

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element of the non-moving party’s case; or (2) by demonstrating that the nonmoving party failed

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to make a showing sufficient to establish an element essential to that party’s case on which that

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party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving

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party fails to meet its initial burden, summary judgment must be denied and the court need not

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consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–

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60 (1970).

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If the moving party satisfies its initial burden, the burden then shifts to the opposing party

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to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith

James C. Mahan
U.S. District Judge

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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the

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opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient

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that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

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versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,

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631 (9th Cir. 1987).

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In other words, the nonmoving party cannot avoid summary judgment by relying solely on

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conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the

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pleadings and set forth specific facts by producing competent evidence that shows a genuine issue

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for trial. See Celotex, 477 U.S. at 324.

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At summary judgment, a court’s function is not to weigh the evidence and determine the

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truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all

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justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the

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nonmoving party is merely colorable or is not significantly probative, summary judgment may be

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granted. See id. at 249–50.

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III.

Discussion

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A. Judicial Notice

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As an initial matter, the court takes judicial notice of the following recorded documents:

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first deed of trust (ECF No. 36-1); the assignment of deed of trust (ECF No. 36-3); notice of

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delinquent assessment (ECF No. 36-4); notice of default and election to sell (ECF Nos. 36-5, 36-

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6); notice of trustee’s sale (ECF No. 36-7); and trustee’s deed upon sale (ECF No. 36-10). See,

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e.g., United States v. Corinthian Colls., 655 F.3d 984, 998–99 (9th Cir. 2011) (holding that a court

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may take judicial notice of public records if the facts noticed are not subject to reasonable dispute);

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Intri-Plex Tech., Inv. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).

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...

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...

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...

James C. Mahan
U.S. District Judge

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B. Deed Recitals1

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Section 116.3116(1) of the Nevada Revised Statutes gives an HOA a lien on its

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homeowners’ residences for unpaid assessments and fines; moreover, NRS 116.3116(2) gives

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priority to that HOA lien over all other liens and encumbrances with limited exceptions—such as

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“[a] first security interest on the unit recorded before the date on which the assessment sought to

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be enforced became delinquent.” Nev. Rev. Stat. § 116.3116(2)(b).

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The statute then carves out a partial exception to subparagraph (2)(b)’s exception for first

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security interests. See Nev. Rev. Stat. § 116.3116(2). In SFR Investment Pool 1 v. U.S. Bank, the

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Nevada Supreme Court provided the following explanation:

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As to first deeds of trust, NRS 116.3116(2) thus splits an HOA lien into two pieces,
a superpriority piece and a subpriority piece. The superpriority piece, consisting of
the last nine months of unpaid HOA dues and maintenance and nuisance-abatement
charges, is “prior to” a first deed of trust. The subpriority piece, consisting of all
other HOA fees or assessments, is subordinate to a first deed of trust.

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334 P.3d 408, 411 (Nev. 2014) (“SFR Investments”).

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Chapter 116 of the Nevada Revised Statutes permits an HOA to enforce its superpriority

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lien by nonjudicial foreclosure sale. Id. at 415. Thus, “NRS 116.3116(2) provides an HOA a true

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superpriority lien, proper foreclosure of which will extinguish a first deed of trust.” Id. at 419; see

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also Nev. Rev. Stat. § 116.31162(1) (providing that “the association may foreclose its lien by sale”

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upon compliance with the statutory notice and timing rules).
Subsection (1) of NRS 116.31166 provides that the recitals in a deed made pursuant to

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NRS 116.31164 of the following are conclusive proof of the matters recited:

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(a) Default, the mailing of the notice of delinquent assessment, and the recording
of the notice of default and election to sell;
(b) The elapsing of the 90 days; and
(c) The giving of notice of sale[.]

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Nev. Rev. Stat. § 116.31166(1)(a)–(c).2 “The ‘conclusive’ recitals concern default, notice, and

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publication of the [notice of sale], all statutory prerequisites to a valid HOA lien foreclosure sale
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The 2015 Legislature revised Chapter 116 substantially. 2015 Nev. Stat., ch. 266. Except where
otherwise indicated, the references in this order to statutes codified in NRS Chapter 116 are to the
version of the statutes in effect in 2013–14, when the events giving rise to this litigation occurred.
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James C. Mahan
U.S. District Judge

The statute further provides as follows:

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as stated in NRS 116.31162 through NRS 116.31164, the sections that immediately precede and

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give context to NRS 116.31166.” Shadow Wood Homeowners Assoc. v. N.Y. Cmty. Bancorp., Inc.,

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366 P.3d 1105 (Nev. 2016) (“Shadow Wood”). Nevertheless, courts retain the equitable authority

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to consider quiet title actions when a HOA’s foreclosure deed contains statutorily conclusive

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recitals. See id. at 1112.

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Here, BANA has provided the recorded trustee’s deed upon sale, the recorded notice of

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delinquent assessment, the recorded notice of default and election to sell, and the recorded notice

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of trustee’s sale. Pursuant to NRS 116.31166, these recitals in the recorded foreclosure deed are

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conclusive to the extent that they implicate compliance with NRS 116.31162 through NRS

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116.31164, which provide the statutory prerequisites of a valid foreclosure. See id. at 1112 (“[T]he

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recitals made conclusive by operation of NRS 116.31166 implicate compliance only with the

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statutory prerequisites to foreclosure.”). Therefore, pursuant to NRS 116.31166 and the recorded

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foreclosure deed, the foreclosure sale is valid to the extent that it complied with NRS 116.31162

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through NRS 116.31164.

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Importantly, while NRS 116.3116 accords certain deed recitals conclusive effect—e.g.,

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default, notice, and publication of the notice of sale—it does not conclusively, as a matter of law,

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entitle Arkham XIII to success on its quiet title claim. See Shadow Wood, 366 P.3d at 1112

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(rejecting contention that NRS 116.31166 defeats, as a matter of law, actions to quiet title). Thus,

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the question remains whether BANA has demonstrated sufficient grounds to justify setting aside

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the foreclosure sale. See id. “When sitting in equity . . . courts must consider the entirety of the

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2. Such a deed containing those recitals is conclusive against the unit's
former owner, his or her heirs and assigns, and all other persons. The receipt for the
purchase money contained in such a deed is sufficient to discharge the purchaser
from obligation to see to the proper application of the purchase money.

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3. The sale of a unit pursuant to NRS 116.31162, 116.31163 and 116.31164
vests in the purchaser the title of the unit’s owner without equity or right of
redemption.

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Nev. Rev. Stat. § 116.31166(2)–(3).
James C. Mahan
U.S. District Judge

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circumstances that bear upon the equities. This includes considering the status and actions of all

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parties involved, including whether an innocent party may be harmed by granting the desired

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relief.” Id.

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C. Quiet Title

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Under Nevada law, “[a]n action may be brought by any person against another who claims

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an estate or interest in real property, adverse to the person bringing the action for the purpose of

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determining such adverse claim.” Nev. Rev. Stat. § 40.010. “A plea to quiet title does not require

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any particular elements, but each party must plead and prove his or her own claim to the property

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in question and a plaintiff’s right to relief therefore depends on superiority of title.” Chapman v.

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Deutsche Bank Nat’l Trust Co., 302 P.3d 1103, 1106 (Nev. 2013) (internal quotation marks and

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citations omitted). Therefore, for plaintiff to succeed on its quiet title action, it needs to show that

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its claim to the property is superior to all others. See also Breliant v. Preferred Equities Corp.,

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918 P.2d 314, 318 (Nev. 1996) (“In a quiet title action, the burden of proof rests with the plaintiff

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to prove good title in himself.”).

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Section 116.3116(1) of the NRS gives an HOA a lien on its homeowners’ residences for

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unpaid assessments and fines. Nev. Rev. Stat. § 116.3116(1). Moreover, NRS 116.3116(2) gives

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priority to that HOA lien over all other liens and encumbrances with limited exceptions—such as

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“[a] first security interest on the unit recorded before the date on which the assessment sought to

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be enforced became delinquent.” Nev. Rev. Stat. § 116.3116(2)(b).

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The statute then carves out a partial exception to subparagraph (2)(b)’s exception for first

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security interests. See Nev. Rev. Stat. § 116.3116(2). In SFR Investment Pool 1 v. U.S. Bank, the

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Nevada Supreme Court provided the following explanation:

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As to first deeds of trust, NRS 116.3116(2) thus splits an HOA lien into two pieces,
a superpriority piece and a subpriority piece. The superpriority piece, consisting of
the last nine months of unpaid HOA dues and maintenance and nuisance-abatement
charges, is “prior to” a first deed of trust. The subpriority piece, consisting of all
other HOA fees or assessments, is subordinate to a first deed of trust.
334 P.3d 408, 411 (Nev. 2014) (“SFR Investments”).

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Chapter 116 of the Nevada Revised Statutes permits an HOA to enforce its superpriority

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lien by nonjudicial foreclosure sale. Id. at 415. Thus, “NRS 116.3116(2) provides an HOA a true

James C. Mahan
U.S. District Judge

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superpriority lien, proper foreclosure of which will extinguish a first deed of trust.” Id. at 419; see

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also Nev. Rev. Stat. § 116.31162(1) (providing that “the association may foreclose its lien by sale”

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upon compliance with the statutory notice and timing rules).
1. Insufficient Tender

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In the instant motion, BANA argues that its March 3rd tender to ACS preserved the

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sonority of BANA’s deed of trust. (ECF No. 36 at 5). BANA asserts that it calculated the

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superpriority amount to be $180.00 and tendered that amount to ACS on March 3, 2014, which

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the HOA allegedly accepted. (ECF No. 36 at 5–7).

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The court disagrees. The ledger dated February 19, 2014, stated a superpriority amount

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owed of $2,104.35 and a total owed of $6,553.45. (ECF No. 36-8 at 9–10). BANA did not tender

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the amount set forth in the notice of default or the amount set forth in the ledger. Rather, BANA

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tendered a lesser amount, the amount it calculated to be sufficient—specifically, $180.00.

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Under NRS 116.31166(1), the holder of a first deed of trust may pay off the superpriority

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portion of an HOA lien to prevent the foreclosure sale from extinguishing that security interest.

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See Nev. Rev. Stat. § 116.31166(1); see also SFR Investments, 334 P.3d at 414 (“But as a junior

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lienholder, U.S. Bank could have paid off the SHHOA lien to avert loss of its security . . . .”); see

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also, e.g., 7912 Limbwood Ct. Trust v. Wells Fargo Bank, N.A., et al., 979 F. Supp. 2d 1142, 1149

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(D. Nev. 2013) (“If junior lienholders want to avoid this result, they readily can preserve their

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security interests by buying out the senior lienholder’s interest.” (citing Carillo v. Valley Bank of

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Nev., 734 P.2d 724, 725 (Nev. 1987); Keever v. Nicholas Beers Co., 611 P.2d 1079, 1083 (Nev.

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1980))).

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The superpriority lien portion, however, consists of “the last nine months of unpaid HOA

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dues and maintenance and nuisance-abatement charges,” while the subpriority piece consists of

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“all other HOA fees or assessments.” SFR Investments, 334 P.3d at 411 (emphasis added); see

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also 7912 Limbwood Ct. Trust, 979 F. Supp. 2d at 1150 (“The superpriority lien consists only of

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unpaid assessments and certain charges specifically identified in § 116.31162.”). BANA tendered

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$180.00 based on its calculation of the nine months of unpaid HOA dues, without adequately

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James C. Mahan
U.S. District Judge

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accounting for the maintenance and nuisance-abatement charges. Further, BANA fails to explain

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why it was appropriate to eliminate the other charges calculated in the ledger’s superpriority total.

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BANA merely presumed, without adequate support, that the amount set forth in the notice

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of default/ledger included more than the superpriority lien portion and that a lesser amount based

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on BANA’s own calculations would be sufficient to preserve its interest in the property. See

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generally, e.g., Nev. Rev. Stat. § 107.080 (allowing trustee’s sale under a deed of trust only when

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a subordinate interest has failed to make good the deficiency in performance or payment for 35

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days); Nev. Rev. Stat. § 40.430 (barring judicially ordered foreclosure sale if the deficiency is

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made good at least 5 days prior to sale).

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The notice of default recorded January 8, 2014, set forth an amount due of $2,385.68 and

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the February 19, 2014, ledger set forth a superpriority amount due of $2,104.35. Rather than

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tendering either amount so as to preserve its interest in the property and then later seeking a refund

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of any difference, BANA elected to pay a lesser amount ($180.00) based on its unwarranted

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assumption that the amount stated in the notice included more than what was due. See SFR

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Investments, 334 P.3d at 418 (noting that the deed of trust holder can pay the entire lien amount

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and then sue for a refund). Had BANA paid the amount set forth in the notice of default

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($2,385.68), the HOA’s interest would have been subordinate to the first deed of trust. See Nev.

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Rev. Stat. § 116.31166(1).

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After failing to use the legal remedies available to BANA to prevent the property from

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being sold to a third party—for example, seeking a temporary restraining order and preliminary

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injunction and filling a lis pendens on the property (see Nev. Rev. Stat. §§ 14.010, 40.060)—

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BANA now seeks to profit from its own failure to follow the rules set forth in the statutes. See

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generally, e.g., Barkley’s Appeal. Bentley’s Estate, 2 Monag. 274, 277 (Pa. 1888) (“In the case

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before us, we can see no way of giving the petitioner the equitable relief she asks without doing

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great injustice to other innocent parties who would not have been in a position to be injured by

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such a decree as she asks if she had applied for relief at an earlier day.”); Nussbaumer v. Superior

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Court in & for Yuma Cty., 489 P.2d 843, 846 (Ariz. 1971) (“Where the complaining party has

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access to all the facts surrounding the questioned transaction and merely makes a mistake as to the

James C. Mahan
U.S. District Judge

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legal consequences of his act, equity should normally not interfere, especially where the rights of

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third parties might be prejudiced thereby.”).

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In presuming that an “offer” to pay constitutes a “tender” of payment, BANA cites to Stone

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Hollow Ave. Trust v. Bank of Am., Nat’l Ass’n, 382 P.3d 911 (Nev. 2016), for the proposition that

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an offer to pay the superpriority amount prior to the foreclosure sale preserves the lender’s deed

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of trust. (ECF No. 36 at 5–8).

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The Stone Hollow court, however, made no such holding. To the contrary, the Stone

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Hollow court held that “[w]hen rejection of a tender is unjustified, the tender is effective to

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discharge the lien.” 382 P.3d at 911. BANA has not set forth any evidence as to a tender in a

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sufficient amount.

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Based on the foregoing, BANA has failed to sufficiently establish that it tendered a

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sufficient amount prior to the foreclosure sale so as to render NNB’s title (and, therefore, Arkham

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XIII’s title) subject to BANA’s deed of trust.

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2. Due Process

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BANA argues that the HOA lien statute is facially unconstitutional because it does not

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mandate notice to deed of trust beneficiaries. (ECF No. 36 at 8–11). BANA further contends that

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any factual issues concerning actual notice is irrelevant pursuant to Bourne Valley Court Trust v.

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Wells Fargo Bank, N.A., 832 F.3d 1154 (9th Cir. 2016) (“Bourne Valley”). (ECF No. 24 at 8–11).

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The Ninth Circuit held that NRS 116.3116’s “opt-in” notice scheme, which required a

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HOA to alert a mortgage lender that it intended to foreclose only if the lender had affirmatively

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requested notice, facially violated mortgage lenders’ constitutional due process rights. Bourne

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Valley, 832 F.3d at 1157–58. The facially unconstitutional provision, as identified in Bourne

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Valley, exists in NRS 116.31163(2). See id. at 1158. At issue is the “opt-in” provision that

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unconstitutionally shifts the notice burden to holders of the property interest at risk. See id.

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To state a procedural due process claim, a claimant must allege “(1) a deprivation of a

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constitutionally protected liberty or property interest, and (2) a denial of adequate procedural

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protections.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir.

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1998). BANA has satisfied the first element as a deed of trust is a property interest under Nevada

James C. Mahan
U.S. District Judge

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law. See Nev. Rev. Stat. § 107.020 et seq.; see also Mennonite Bd. of Missions v. Adams, 462 U.S.

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791, 798 (1983) (stating that “a mortgagee possesses a substantial property interest that is

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significantly affected by a tax sale”). However, BANA fails on the second prong.

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Due process does not require actual notice. Jones v. Flowers, 547 U.S. 220, 226 (2006).

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Rather, it requires notice “reasonably calculated, under all the circumstances, to apprise interested

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parties of the pendency of the action and afford them an opportunity to present their objections.”

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Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Bourne Valley,

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832 F.3d at 1158.

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Here, adequate notice was given to the interested parties prior to extinguishing a property

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right. In fact, BANA acknowledges having received the notice of default. (ECF No. 36-8 at 6

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(“This letter is in response to your Notice of Default with regard to the HOA assessments

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purportedly owed on the above described real property.”). As a result, the notice of trustee’s sale

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was sufficient notice to cure any constitutional defect inherent in NRS 116.31163(2) as it put

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BANA on notice that its interest was subject to pendency of action and offered all of the required

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information.
3. Commercial Reasonability

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BANA contends that judgment in its favor is appropriate because the sale of the property

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for 6% of its fair market value is grossly inadequate as a matter of law. (ECF No. 36 at 11–14).

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BANA further argues that the Shadow Wood court adopted the restatement approach, quoting the

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opinion as holding that “[w]hile gross inadequacy cannot be precisely defined in terms of a specific

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percentage of fair market value, generally a court is warranted in invalidating a sale where the

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price is less than 20 percent of fair market value.” (ECF No. 36 at 12) (emphasis omitted).

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NRS 116.3116 codifies the Uniform Common Interest Ownership Act (“UCIOA”) in

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Nevada. See Nev. Rev. Stat. § 116.001 (“This chapter may be cited as the Uniform Common-

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Interest Ownership Act”); see also SFR Investments, 334 P.3d at 410. Numerous courts have

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interpreted the UCIOA and NRS 116.3116 as imposing a commercial reasonableness standard on

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foreclosure of association liens.3

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James C. Mahan
U.S. District Judge

See, e.g., Bayview Loan Servicing, LLC v. Alessi & Koenig, LLC, 962 F. Supp. 2d 1222, 1229
(D. Nev. 2013) (“[T]he sale for $10,000 of a Property that was worth $176,000 in 2004, and which
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In Shadow Wood, the Nevada Supreme Court held that an HOA’s foreclosure sale may be

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set aside under a court’s equitable powers notwithstanding any recitals on the foreclosure deed

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where there is a “grossly inadequate” sales price and “fraud, unfairness, or oppression.” 366 P.3d

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at 1110; see also Nationstar Mortg., LLC v. SFR Invs. Pool 1, LLC, 184 F. Supp. 3d 853, 857–58

5

(D. Nev. 2016).

6

foreclosure sale for an inadequate price is not enough to set aside that sale; there must also be a

7

showing of fraud, unfairness, or oppression.” Id. at 1112; see also Long v. Towne, 639 P.2d 528,

8

530 (Nev. 1982) (“Mere inadequacy of price is not sufficient to justify setting aside a foreclosure

9

sale, absent a showing of fraud, unfairness or oppression.” (citing Golden v. Tomiyasu, 387 P.2d

10

989, 995 (Nev. 1963) (stating that, while a power-of-sale foreclosure may not be set aside for mere

11

inadequacy of price, it may be if the price is grossly inadequate and there is “in addition proof of

12

some element of fraud, unfairness, or oppression as accounts for and brings about the inadequacy

13

of price” (internal quotation omitted)))).

In other words, “demonstrating that an association sold a property at its

14

Despite BANA’s assertion to the contrary, the Shadow Wood court did not adopt the

15

restatement. In fact, nothing in Shadow Wood suggests that the Nevada Supreme Court’s adopted,

16

or had the intention to adopt, the restatement. Compare Shadow Wood, 366 P.3d at 1112–13 (citing

17

the restatement as secondary authority to warrant use of the 20% threshold test for grossly

18

inadequate sales price), with St. James Village, Inc. v. Cunningham, 210 P.3d 190, 213 (Nev. 2009)

19

(explicitly adopting § 4.8 of the Restatement in specific circumstances); Foster v. Costco

20

Wholesale Corp., 291 P.3d 150, 153 (Nev. 2012) (“[W]e adopt the rule set forth in the Restatement

21

(Third) of Torts: Physical and Emotional Harm section 51.”); Cucinotta v. Deloitte & Touche,

22

LLP, 302 P.3d 1099, 1102 (Nev. 2013) (affirmatively adopting the Restatement (Second) of Torts

23

was probably worth somewhat more than half as much when sold at the foreclosure sale, raises
serious doubts as to commercial reasonableness.”); SFR Investments, 334 P.3d at 418 n.6 (noting
bank’s argument that purchase at association foreclosure sale was not commercially reasonable);
Thunder Props., Inc. v. Wood, No. 3:14-cv-00068-RCJ-WGC, 2014 WL 6608836, at *2 (D. Nev.
Nov. 19, 2014) (concluding that purchase price of “less than 2% of the amounts of the deed of
trust” established commercial unreasonableness “almost conclusively”); Rainbow Bend
Homeowners Ass’n v. Wilder, No. 3:13-cv-00007-RCJ-VPC, 2014 WL 132439, at *2 (D. Nev.
Jan. 10, 2014) (deciding case on other grounds but noting that “the purchase of a residential
property free and clear of all encumbrances for the price of delinquent HOA dues would raise
grave doubts as to the commercial reasonableness of the sale under Nevada law”); Will v. Mill
Condo. Owners’ Ass’n, 848 A.2d 336, 340 (Vt. 2004) (discussing commercial reasonableness
standard and concluding that “the UCIOA does provide for this additional layer of protection”).

24
25
26
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James C. Mahan
U.S. District Judge

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1

section 592A). Because Nevada courts have not adopted the relevant section(s) of the restatement

2

at issue here, the Long test, which requires a showing of fraud, unfairness, or oppression in addition

3

to a grossly inadequate sale price to set aside a foreclosure sale, controls. See 639 P.2d at 530.

4

Nevada has not clearly defined what constitutes “unfairness” in determining commercial

5

reasonableness. The few Nevada cases that have discussed commercial reasonableness state,

6

“every aspect of the disposition, including the method, manner, time, place, and terms, must be

7

commercially reasonable.” Levers v. Rio King Land & Inv. Co., 560 P.2d 917, 920 (Nev. 1977).

8

This includes “quality of the publicity, the price obtained at the auction, [and] the number of

9

bidders in attendance.” Dennison v. Allen Grp. Leasing Corp., 871 P.2d 288, 291 (Nev. 1994)

10

(citing Savage Constr. v. Challenge–Cook, 714 P.2d 573, 574 (Nev. 1986)).

11

Nevertheless, BANA fails to set forth sufficient evidence to show fraud, unfairness, or

12

oppression so as to justify the setting aside of the foreclosure sale. BANA relies on its repeated

13

assertion that BANA tendered the superpriority amount to show fraud, unfairness, or oppression.

14

However, as the discussed in the previous section, the amount due on the date of BANA’s tender

15

was set forth in the notice of default, specifically, $2,385.68. Rather than tendering the noticed

16

amount under protest so as to preserve its interest and then later seeking a refund of the difference

17

in dispute, BANA chose not to tender a lesser amount ($180.00), an amount it calculated to be the

18

superpriority portion.

19

Accordingly, BANA’s commercial reasonability argument fails as a matter of law as it

20

failed to set forth evidence of fraud, unfairness, or oppression. See, e.g., Nationstar Mortg., LLC

21

v. SFR Investments Pool 1, LLC, No. 70653, 2017 WL 1423938, at *2 n.2 (Nev. App. Apr. 17,

22

2017) (“Sale price alone, however, is never enough to demonstrate that the sale was commercially

23

unreasonable; rather, the party challenging the sale must also make a showing of fraud, unfairness,

24

or oppression that brought about the low sale price.”). Because BANA failed to properly raise any

25

equitable challenges to the foreclosure sale, the court need not address BANA’s arguments

26

regarding Arkham XIII’s status as a bona fide purchaser for value. See id. at *3 n.3.

27

...

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...

James C. Mahan
U.S. District Judge

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1

4. Supremacy Clause

2

BANA argues that the HOA lien statute cannot interfere with the federal mortgage

3

insurance program or extinguish mortgage interests insured by the FHA. (ECF No. 36 at 16–22).

4

The single-family mortgage insurance program allows FHA to insure private loans,

5

expanding the availability of mortgages to low-income individuals wishing to purchase homes.

6

See Sec’y of Hous. & Urban Dev. v. Sky Meadow Ass’n, 117 F. Supp. 2d 970, 980–81 (C.D. Cal.

7

2000) (discussing program); W Wash. & Sandhill Homeowners Ass’n v. Bank of Am., N.A., No.

8

2:13-cv-01845-GMN-GWF, 2014 WL 4798565, at *1 n.2 (D. Nev. Sept. 25, 2014) (same). If a

9

borrower under this program defaults, the lender may foreclose on the property, convey title to

10

HUD, and submit an insurance claim. 24 C.F.R. § 203.355. HUD’s property disposition program

11

generates funds to finance the program. See 24 C.F.R. § 291.1.

12

Allowing an HOA foreclosure to wipe out a first deed of trust on a federally-insured

13

property thus interferes with the purposes of the FHA insurance program. Specifically, it hinders

14

HUD’s ability to recoup funds from insured properties. As this court previously stated in

15

SaticoyBayLLC, Series 7342 Tanglewood Park v. SRMOF II 2012-1 Trust, the court reads the

16

foregoing precedent to indicate that a homeowners’ association foreclosure sale under NRS

17

116.3116 may not extinguish a federally-insured loan. No. 2:13–CV–1199 JCM (VCF), 2015 WL

18

1990076, at *4 (D. Nev. Apr. 30, 2015).

19

However, the instant case is distinguishable from these cases in that, here, FHA is not a

20

named party. Neither the complaint nor the counterclaim seeks to quiet title against FHA. Thus,

21

this argument provides no support for BANA as the outcome of the instant case has no bearing on

22

FHA’s ability to quiet title.

23
24
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5. Retroactivity
BANA contends that SFR Investments should not be applied retroactively to extinguish the
first deed of trust. (ECF No. 36 at 22–23).

26

The Nevada Supreme Court has since applied the SFR Investments holding in numerous

27

cases that challenged pre-SFR Investments foreclosure sales. See, e.g., Centeno v. Mortg. Elec.

28

Registration Sys., Inc., No. 64998, 2016 WL 3486378, at *2 (Nev. June 23, 2016); LN Mgmt. LLC

James C. Mahan
U.S. District Judge

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1

Series 8301 Boseck 228 v. Wells Fargo Bank, N.A., No. 64495, 2016 WL 1109295, at *1 (Nev.

2

Mar. 18, 2016) (reversing 2013 dismissal of quiet-title action that concluded contrary to SFR

3

Investments, reasoning that “the district court’s decision was based on an erroneous interpretation

4

of the controlling law”); Mackensie Family, LLC v. Wells Fargo Bank, N.A., No. 65696, 2016 WL

5

315326, at *1 (Nev. Jan. 22, 2016) (reversing and remanding because “[t]he district court’s

6

conclusion of law contradicts our holding in SFR Investments Pool 1 v. U.S. Bank”). Thus, SFR

7

Investments applies to this case.
In light of the foregoing, BANA has failed to show that it is entitled to judgment as a matter

8
9

of law on its claims against the HOA, ACS, Arkham, and Arkham XIII.

10

D. The HOA’s Motion for Summary Judgment

11

The HOA has failed to adequately show that it is entitled to summary judgment on BANA’s

12

quiet title claim. (ECF No. 37). In particular, the HOA admits accepting BANA’s March 3rd

13

tender of $180.00, but argues that BANA merely tendered a partial lien payment to the HOA,

14

which encompassed nine months of delinquent assessments. (ECF No. 39 at 5). The HOA fails

15

to explain whether it accepted BANA’s tender as a partial payment on the entire lien or as payment

16

of the superpriority portion of the lien. Thus, a genuine dispute exists as to whether the HOA

17

accepted BANA’s tender as satisfying the superpriority amount.
Accordingly, the HOA’s motion for summary judgment will be denied.

18
19

IV.

Conclusion

20

Accordingly,

21

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that BANA’s motion for

22
23

summary judgment (ECF No. 36) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that the HOA’s motion for summary judgment (ECF No. 37)

24

be, and the same hereby is, DENIED.

25

DATED May 18, 2017.

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__________________________________________
UNITED STATES DISTRICT JUDGE

28
James C. Mahan
U.S. District Judge

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