Bank of America v. Pueblo at Sante Fe Condominium Association, Inc., at al.

Filing 66

ORDER Granting Plaintiff's 48 Motion for Partial Summary Judgment and Granting Plaintiff 's 60 Supplemental Motion for Partial Summary Judgment. Plaintiff's 49 Motion to Stay Case is Denied as moot. The Clerk of Court shall enter judgment accordingly and close the case. Signed by Chief Judge Gloria M. Navarro on 3/25/2019. (Copies have been distributed pursuant to the NEF - SLD)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 BANK OF AMERICA, N.A., 4 Plaintiff vs. 5 6 PUEBLO AT SANTE FE CONDOMINIUM ASSOCIATION, INC., et al., 7 Defendants. 8 ) ) ) ) ) ) ) ) ) Case No.: 2:16-cv-01199-GMN-CWH ORDER Pending before the Court is the Motion for Partial Summary Judgment, (ECF No. 48), 9 10 filed by Bank of America, N.A. (“Plaintiff”). Defendant Pueblo at Sante Fe Condominium 11 Association, Inc. (“HOA”) and Defendant Keynote Properties, LLC (“Keynote”) (collectively 12 “Defendants”) filed Responses, (ECF Nos. 57, 58). Plaintiff then filed a Reply, (ECF No. 59). Also pending before the Court is Plaintiff’s Supplemental Motion for Partial Summary 13 14 Judgment, (ECF No. 60). HOA and Keynote filed Responses, (ECF Nos. 61, 62), and Plaintiff 15 filed a Reply, (ECF No. 65). For the reasons discussed below, the Court GRANTS Plaintiff’s Motion for Partial 16 17 Summary Judgment, (ECF No. 48), and GRANTS Plaintiff’s Supplemental Motion for Partial 18 Summary Judgment, (ECF No. 60).1 19 I. BACKGROUND This case arises from the non-judicial foreclosure on real property located at 6909 20 21 Squaw Mountain Drive, Unit 204, Las Vegas, Nevada 89130 (the “Property”). (See Deed of 22 Trust, Ex. 1 to Pl.’s Mot. Summ. J. (“MSJ”), ECF No. 48-1). In 2006, Jennie Dubinsky 23 (“Borrower”) purchased the Property by way of a loan in the amount of $120,000.00, secured 24 25 Also pending before the Court is Plaintiff’s Motion to Stay Case, (ECF No. 49). Because this Order closes the case, the Court denies Plaintiff’s Motion as moot. 1 Page 1 of 12 1 by a deed of trust (the “DOT”). (Id.). American Sterling Bank served as the original lender for 2 the DOT, and Mortgage Electronic Registration System, Inc. (“MERS”) was the nominal 3 beneficiary on behalf of that Bank. (DOT, Ex. 1 to Pl.’s MSJ). 2 Fannie Mae purchased the DOT in August 2006. (Decl. John Curcio ¶ 5, Ex. 2 to Pl.’s 4 5 MSJ, ECF No. 48-1); (Loan Transaction History, Ex. A to Decl. John Curcio, ECF No. 48-1). 6 On January 23, 2013, Plaintiff received an assignment of the DOT from the original lender, 7 American Sterling Bank. (Assignment of DOT, Ex. 3 to Pl.’s MSJ, ECF No. 48-1) (showing a 8 recorded assignment on January 23, 2013). Upon Borrower’s failure to stay current on payment obligations, Alessi and Koenig, 9 10 LLC (“A&K”), on behalf of HOA, initiated foreclosure proceedings by recording a notice of 11 delinquent assessment lien and a subsequent notice of default and election to sell. (See Notice 12 of Delinquent Assessment Lien, Ex. 5 to Pl.’s MSJ, ECF No. 48-1); (Notice of Default, Ex. 6 to 13 Pl.’s MSJ, ECF No. 48-1). On October 23, 2012, the law firm Miles, Bauer, Bergstrom & Winters LLP (“Miles 14 15 Bauer”), on Plaintiff’s behalf, sent a letter to A&K requesting a ledger with the amount of 16 HOA’s superpriority lien. (See Request for Accounting at 6–7, Ex. 1 to Miles Aff., ECF No. 17 60-1). A&K accordingly responded with a ledger. (See Statement of Account, Ex. 2 to Miles 18 Aff., ECF No. 60-1). Miles Bauer, on behalf of Plaintiff, subsequently delivered a check to 19 A&K for $1,720.60, based on the provided ledger, purportedly representing nine months’ worth 20 of HOA assessments. (See Tender Letter, Ex. 3 to Miles Aff., ECF No. 60-1). Nevertheless, A&K proceeded with the foreclosure by recording a notice of foreclosure 21 22 sale and foreclosing on the Property. (See Notice of Trustee’s Sale, Ex. 7 to Pl.’s MSJ, ECF No. 23 24 The Court takes judicial notice of the public property records attached as exhibits to Plaintiff’s Motion for Summary Judgment, (ECF No. 48-1). See Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866 n.1 (9th Cir. 2004) (citing Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir.2001)); Harlow v. MTC Fin. Inc., 865 F. Supp. 2d 1095, 1099 (D. Nev. 2012). 2 25 Page 2 of 12 1 48-1). On June 13, 2013, Keynote recorded a foreclosure deed, stating it purchased the 2 Property for $9,300. (Foreclosure Deed, Ex. 8 to Pl.’s MSJ, ECF No. 48-1). Plaintiff filed its Complaint on May 27, 2016, asserting the following causes of action 3 4 arising from the Property’s foreclosure sale: (1) declaratory relief pursuant to 28 U.S.C. § 2201; 5 (2) violation of the Housing and Economy Recovery Act of 2008; (3) quiet title; and (4) breach 6 of Nevada Revised Statute 116.1113; (5) wrongful foreclosure; and (6) injunctive relief. (See 7 Compl. ¶¶ 7–96, ECF No. 1). 8 9 II. LEGAL STANDARD The Federal Rules of Civil Procedure provide for summary adjudication when the 10 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 11 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 12 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that 13 may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 14 A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to 15 return a verdict for the nonmoving party. Id. “Summary judgment is inappropriate if 16 reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict 17 in the nonmoving party’s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th 18 Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A 19 principal purpose of summary judgment is “to isolate and dispose of factually unsupported 20 claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 21 In determining summary judgment, a court applies a burden-shifting analysis. “When 22 the party moving for summary judgment would bear the burden of proof at trial, it must come 23 forward with evidence which would entitle it to a directed verdict if the evidence went 24 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 25 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Page 3 of 12 1 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In 2 contrast, when the nonmoving party bears the burden of proving the claim or defense, the 3 moving party can meet its burden in two ways: (1) by presenting evidence to negate an 4 essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving 5 party failed to make a showing sufficient to establish an element essential to that party’s case 6 on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 323–24. If 7 the moving party fails to meet its initial burden, summary judgment must be denied and the 8 court need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S. 9 144, 159–60 (1970). 10 If the moving party satisfies its initial burden, the burden then shifts to the opposing 11 party to establish that a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. 12 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 13 the opposing party need not establish a material issue of fact conclusively in its favor. It is 14 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 15 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 16 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid 17 summary judgment by relying solely on conclusory allegations that are unsupported by factual 18 data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go 19 beyond the assertions and allegations of the pleadings and set forth specific facts by producing 20 competent evidence that shows a genuine issue for trial. Celotex Corp., 477 U.S. at 324. 21 At summary judgment, a court’s function is not to weigh the evidence and determine the 22 truth; it is to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. 23 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 24 in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is 25 not significantly probative, summary judgment may be granted. Id. at 249–50. Page 4 of 12 1 2 III. DISCUSSION Plaintiff moves for partial summary judgment on its quiet title and declaratory relief 3 claims, asserting that 12 U.S.C. § 4617(j)(3) (the “Federal Foreclosure Bar”) compels the Court 4 to find that the HOA’s foreclosure sale did not extinguish Plaintiff’s DOT on the Property. 5 (Pl.’s MSJ 2:1–10, ECF No. 48). Plaintiff also argues that summary judgment is warranted 6 because Plaintiff properly tendered the superpriority portion of HOA’s lien prior to the 7 Property’s foreclosure sale, thus serving as an additional route to prevent the foreclosure sale 8 from extinguishing Plaintiff’s DOT. (Pl.’s Supp. MSJ 2:3–8, ECF No. 60). 9 Defendants, in response, argue that Plaintiff has not provided sufficient evidence to 10 establish Fannie Mae’s interest in the Property at the time of foreclosure, and that the Federal 11 Foreclosure Bar does not preempt the applicable Nevada law that authorized the foreclosure 12 sale’s extinguishment of Plaintiff’s DOT. (HOA’s Resp. 4:23–8:1, ECF No. 57); (Keynote’s 13 Resp. 4:5–6:8, ECF No. 58). Defendants also oppose Plaintiff’s Motion by arguing, inter alia, 14 that Plaintiff’s purported tender did not satisfy HOA’s superpriority lien because the attempted 15 tender contained impermissible conditions, rendering the attempted tender invalid. (Keynote’s 16 Resp. 2:10–3:12, ECF No. 61); (HOA’s Resp. 2:9–4:12, ECF No. 62). The Court’s discussion 17 below first addresses the applicability of the Federal Foreclosure Bar to this case. 18 A. Federal Foreclosure Bar 19 The Federal Foreclosure Bar prohibits foreclosures of federally owned or controlled 20 property “without the consent of the [Federal Housing Finance Agency].” 12 U.S.C. 21 § 4617(j)(3) (2012); see Saticoy Bay, LLC, Series 2714 Snapdragon v. Flagstar Bank, FSB, 699 22 F. App’x 658 (9th Cir. 2017). Moreover, the Ninth Circuit’s decision in Berezovsky v. Moniz, 23 869 F.3d 923, 932 (9th Cir. 2017), decided that the Federal Foreclosure Bar preserves the 24 property interests of the Federal Housing Finance Agency (the “Agency”), including a 25 government-sponsored enterprise of the Agency such as Fannie Mae, from an HOA’s Page 5 of 12 1 foreclosure sale under NRS 116.3116, if that sale occurred without the affirmative consent of 2 the Agency. Id. at 927–32. Here, Plaintiff establishes its status as Fannie Mae’s loan servicer on the Property; and 3 4 thus, Plaintiff has standing to assert the Federal Foreclosure Bar. See e.g., Saticoy Bay, LLC 5 Series 2714 Snapdragon v. Flagstar Bank, FSB, 699 Fed. App’x 658 (9th Cir. 2017) (holding a 6 loan servicer acting as Fannie Mae’s agent may assert federal preemption); (Decl. John Curcio 7 ¶ 10, Ex. 2 to Pl,’s MSJ, ECF No. 48-1) (explaining Plaintiff’s status as Fannie Mae’s loan 8 servicer at the time of Property’s foreclosure sale); (Loan Transaction History at 33–43, Ex. A. 9 to Decl. John Curcio, ECF No. 48-1). The next issue, then, is whether Plaintiff provides evidence that Fannie Mae owned an 10 11 interest in Plaintiff’s DOT at the time of the foreclosure sale, thereby invoking the Federal 12 Foreclosure Bar’s protections. The circuit’s decision in Berezovsky v. Moniz guides the Court’s 13 analysis. 869 F.3d 923 (9th Cir. 2017). That is, even though Defendants challenge Plaintiff’s 14 proof of Fannie Mae’s interest in Plaintiff’s DOT, Plaintiff provides evidence nearly identical 15 to that which the Ninth Circuit in Berezovsky found sufficient to show Freddie Mac’s interest in 16 a property lien.3 Specifically, Plaintiff provides Fannie Mae’s business records showing that 17 Fannie Mae purchased the original loan secured on the Property in 2006, and maintained 18 ownership at the time of the Property’s May 29, 2013 foreclosure sale. (Decl. John Curcio ¶ 5, 19 ECF No. 48-1); (Loan Transaction History, Ex. A to Decl. John Curcio, ECF No. 48-1); see 20 Berezovsky, 869 F.3d at 932–933.4 21 22 23 24 At the time of the Property’s foreclosure sale, Freddie Mac was similar to Fannie Mae in that both were under the conservatorship of the Federal Housing Finance Agency (the “Agency”)—meaning the Agency temporarily owned and controlled Freddie Mac and Fannie Mae’s assets. See Berezovsky v. Moniz, 869 F.3d 923, 926 (9th Cir. 2017); Skylights LLC v. Byron, 112 F. Supp. 3d 1145, 1148 (D. Nev. 2015). 3 Fannie Mae maintained its business records on its Servicer and Investor Reporting (“SIR”) Platform, which is an “electronic system of record that contains information regarding mortgage loans acquired and owned by Fannie Mae.” (Decl. John Curcio ¶ 4, ECF No. 48-1). Based upon the Declaration of John Curcio, the Court finds that these records were kept in the ordinary course of Fannie Mae’s business, created at or near the time of 4 25 Page 6 of 12 1 Defendants point out that Fannie Mae does not appear on Plaintiff’s DOT, and thus 2 Defendants claim there is at least a dispute of material fact about Fannie Mae’s interest. 3 (HOA’s Resp. 4:24–5:27, ECF No. 57); (Keynote’s Resp. 2:21–4:3, ECF No. 58). However, 4 Fannie Mae’s absence from the DOT, by itself, is insignificant here. To explain, Plaintiff 5 provides evidence that the original lender on the Property was American Sterling Bank, and 6 MERS was the beneficiary on behalf of that Bank. (DOT, Ex. 1 to Pl.’s MSJ, ECF No. 48-1). 7 Plaintiff’s evidence then reveals how Fannie Mae gained an interest in the DOT in August 8 2006; and roughly four months before the Property’s foreclosure sale, Plaintiff received an 9 assignment of the DOT from the original lender, American Sterling Bank, thereby entering into 10 a principle-agent relationship with Fannie Mae. (Assignment of DOT, Ex. 3 to Pl.’s MSJ, ECF 11 No. 48-1) (showing a recorded assignment on January 23, 2013). Indeed, Fannie Mae 12 illustrates the mechanics of this principle-agent relationship through its “Guide,” which is the 13 “central document governing the contractual relationship between Fannie Mae and its loan 14 servicers.” (See Fannie Mae’s Servicing Guide Citations at 51–53, Ex. 4 to Pl.’s MSJ, ECF No. 15 48-1); (Decl. John Curcio ¶ 11, ECF No. 48-1). Under Nevada law, this agency relationship 16 then permitted Fannie Mae to retain its property interest on the Property even though the 17 recorded DOT does not name Fannie Mae. See Berezovsky, 869 F.3d at 932; see also In re 18 Montierth, 354 P.3d 648, 650–51 (2015) (citing Restatement (Third) of Property: Mortgages 19 § 5.4 cmt. c (Am. Law. Inst. 1997)); Nationstar Mortg., LLC v. Guberland LLC-Series 3, 420 20 P.3d 556 at *2 (Nev. 2018) (unpublished disposition). 21 Altogether, because Fannie Mae’s interest in the Property is valid and enforceable under 22 Nevada law, Plaintiff—as Fannie Mae’s servicer—can properly invoke the Federal Foreclosure 23 24 25 each recorded event, and thus can properly support Plaintiff’s Motion for Summary Judgment. See U-Haul Int'l, Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1043 (9th Cir. 2009) (affirming district court’s admission of payment history summaries maintained in electronic format and compiled in the regular course of business.). Page 7 of 12 1 Bar to preclude the Property’s foreclosure sale from extinguishing Plaintiff’s DOT. Further, 2 Defendants do not satisfy their burden of providing, or pointing to, any evidence that raises 3 more than a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith 4 Radio Corp., 475 U.S. 574, 586 (1986). Defendants thus fail to preclude summary judgment on 5 the Federal Foreclosure Bar’s applicability to this case. 6 Keynote contends that, even if the Federal Foreclosure Bar applies, the Bar cannot 7 override its status as a bona fide purchaser of the Property. (Keynote’s Resp., ECF No. 4:5– 8 6:8). Courts in this District have already rejected this argument, and the Court continues to do 9 so here. In line with the circuit’s decision in Berezovsky v. Moniz, 869 F.3d 923 (9th Cir. 10 2017), “[a]llowing Nevada’s law on bona fide purchasers to control . . . would be ‘an obstacle 11 to Congress’s clear and manifest goal of protecting [Fannie Mae’s] assets in the face of 12 multiple potential threats, including threats arising from state foreclosure law.’ ” JPMorgan 13 Chase Bank, N.A. v. GDS Fin. Servs., No. 2:17-cv-02451-APG-PAL, 2018 WL 2023123, at *3 14 (D. Nev. May 1, 2018) (citing Berezovsky, 869 F.3d at 931); see Summit Real Estate Grp., Inc. 15 v. Fed. Home Loan Mortg. Corp., No. 2:15-cv-00760-KJD-GWF, 2019 WL 918980, at *4 (D. 16 Nev. Feb. 25, 2019). Thus, even if Keynote were a bona fide purchaser, Keynote cannot 17 prevail. Tender of the Superpriority Portion of HOA’s Lien 18 B. 19 In addition to the Federal Foreclosure Bar preventing extinguishment of Plaintiff’s DOT, 20 Plaintiff also tendered payment of the HOA’s superpriority lien amount prior to the Property’s 21 foreclosure. As explained below, tender is an additional reason that the Property’s May 29, 22 2013 foreclosure sale did not extinguishing Plaintiff’s DOT. 23 Under NRS 116.3116, the holder of a first deed of trust may pay off the superpriority 24 portion of an HOA lien to prevent the foreclosure sale from extinguishing the deed of trust. See 25 SFR Invs. Pool 1 v. U.S. Bank, 334 P.3d 408, 414 (Nev. 2014). “[A] first deed of trust holder’s Page 8 of 12 1 unconditional tender of the superpriority amount due results in the buyer at foreclosure taking 2 the property subject to the deed of trust.” Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d 3 113, 116 (Nev. 2018) (en banc). “[T]he superpriority portion of an HOA lien includes only 4 charges for maintenance and nuisance abatement, and nine months of unpaid assessments.” Id. 5 at 117. In addition to a full tender of the superpriority amount, “valid tender must be 6 unconditional, or with conditions on which the tendering party has a right to insist.” Id. 7 Here, the evidence indicates that on December 20, 2012, the law firm of Miles, Bauer, 8 Bergstrom & Winters, LLP, (“Miles Bauer”), on behalf of Plaintiff, sent a letter to HOA’s 9 agent, Alessi & Koenig, LLC (“A&K”), alongside a check for $1,720.60. (See Tender Letter, 10 Ex. 3 to Miles Bauer Aff., ECF No. 60-1). Plaintiff calculated that amount based on nine 11 months of owed assessments, which ranged from $100 per month to $133.40 per month, and 12 $520.00 in collection costs. (MSJ 2:21–3:2, ECF No. 60); (Borrower Account History Report, 13 Ex. 2 to Miles Bauer Aff., ECF No. 60-1). An accounting ledger provided by the HOA prior to 14 the Property’s foreclosure sale confirms Plaintiff’s calculation. (See Borrower Account History 15 Report, Ex. H to Reply, ECF No. 85-8). Thus, Plaintiff’s tender of the $1,720.60 check to 16 A&K undisputedly satisfied the HOA’s outstanding superpriority lien, and A&K received the 17 check before rejecting it. (See Tender Letter, Ex. 3 to Miles Bauer Aff.); (Confirmation of 18 Receipt, Ex. 4 to Miles Bauer Aff., ECF No. 60-1). 19 Keynote and HOA, in turn, have failed to produce competing evidence showing that 20 Plaintiff miscalculated the superpriority lien amount, that the lien included nuisance and 21 abatement charges, or that Plaintiff never delivered the letter and accompanying check. The 22 remaining question, therefore, is whether Plaintiff’s tender was either unconditional or with 23 conditions on which Plaintiff had the right to insist. 24 25 Plaintiff’s Tender Letter, in relevant part, contains the following language: Our client has authorized us to make payment to you in the amount of $1,720.60 to satisfy its obligations to the HOA as a holder of the Page 9 of 12 first deed of trust against the property. Thus, enclosed you will find a cashier’s check made out to Alessi & Koenig, LLC in the sum of $1,720.60. This is a non-negotiable amount and any endorsement of said cashier’s check on your part, whether express or implied, will be strictly construed as an unconditional acceptance on your part of the facts stated herein and express agreement that BANA’s financial obligations towards the HOA in regards to the real property located at 6906 Squaw Mountain Drive #204 have now been “paid in full.” 1 2 3 4 5 6 (Tender Letter, Ex. 3 to Miles Bauer Aff.). 7 Defendants argue that the tender was invalid because the tender letter included 8 impermissible conditions and false statements. (See Keynote’s Resp. 2:11–3:12, ECF No. 61); 9 (HOA’s Resp. 3:14–4:12, ECF No. 62). Defendants asserts that acceptance of the check was 10 improperly contingent upon agreement with the facts as stated in the letter, including Plaintiff’s 11 legal interpretation that the check’s amount represented payment in full. (See Keynote’s Resp. 12 2:11–3:12); (HOA’s Resp. 3:14–4:12). Accordingly, Defendants contends that rejection of 13 Plaintiff’s payment was made in good faith. (See Keynote’s Resp. 2:11–3:12, ECF No. 61); 14 (HOA’s Resp. 3:14–4:12, ECF No. 62). 15 At the outset, the Court notes that one of the purportedly improper paragraphs in the 16 tender letter is identical to the letter the Nevada Supreme Court deemed unconditional and 17 otherwise valid.5 Therefore, to the extent Defendants assign impropriety to language in that 18 paragraph, the argument necessarily fails. Specifically, with respect to the provision that an 19 endorsement would be construed as acceptance of the letter’s facts, the Court incorporates the 20 21 22 23 24 5 The tender letter before the Nevada Supreme Court contained the following paragraph: This is a non-negotiable amount and any endorsement of said cashier’s check on your part, whether express or implied, will be strictly construed as an unconditional acceptance on your part of the facts stated herein and express agreement that [Bank of America]’s financial obligations towards the HOA in regards to the [property] have now been “paid in full.” 25 Bank of Am., NA., 427 P.3d at 118. Page 10 of 12 1 reasoning of the Nevada Supreme Court and finds this language constitutes a condition on 2 which Plaintiff had the right to insist. Bank of Am., NA., 427 P.3d at 117. 3 Defendants argue that this condition is improper because it disregards any nuisance 4 changes that may arise. (HOA’s Resp. 4:4–12). Because the letter omits any reference to those 5 charges, Defendants contend that acceptance of the tender would force them to accept a 6 misstatement of the law. (Id.). In this case, however, Defendants do not reveal any charges 7 incurred during the relevant time period that would have been impermissibly waived. Thus, 8 acceptance of the letter’s facts in this regard would not force the waiver of any charges that the 9 HOA was entitled to request. 10 Because Plaintiff’s tender satisfied the HOA’s superpriority lien, Defendants cannot 11 prevail even if the Court were to find Keynote was a bona fide purchaser for value. “A 12 foreclosure sale on a mortgage lien after valid tender satisfies that lien is void, as the lien is no 13 longer in default.” See Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d 113, 121 (2018) 14 (“Because a trustee has no power to convey an interest in land securing a note or other 15 obligation that is not in default, a purchaser at a foreclosure sale of that lien does not acquire 16 title to that property interest.”). Accordingly, in light of Plaintiff’s tender, Keynote’s status as a 17 bona fide purchaser is immaterial. 18 Based upon the foregoing, the Court concludes that Plaintiff’s tender satisfied HOA’s 19 superpriority lien and thus invalidated the ensuing sale to the extent it extinguished Plaintiff’s 20 DOT. While the sale remains intact, Plaintiff’s DOT continues to encumber the Property and 21 Keynote’s interest is subject to this encumbrance. Accordingly, Plaintiff’s Motion for 22 Summary Judgment, as to its quiet title claim, is granted. Plaintiff’s Remaining Claims 23 C. 24 In its prayer for relief, Plaintiff requests an order declaring: “12 U.S.C. § 4617(j)(3) 25 preempts any Nevada law that would permit a foreclosure on a super-priority lien to extinguish Page 11 of 12 1 a property interest of Fannie Mae while it is under FHFA’s conservatorship”; and “the HOA 2 foreclosure sale did not extinguish [Plaintiff’s] interests and thus the property was not 3 transferred free and clear to Keynote.” (Compl. 16:16–23, ECF No. 1). Plaintiff’s other 4 requested forms of relief are phrased in the alternative. (See id. 16:24–17:8). Because the Court 5 finds that 12 U.S.C. § 4617(j)(3) prevents Plaintiff’s DOT from being extinguished by the 6 Property’s foreclosure sale, in addition to Plaintiff’s tender of the superpriority amount 7 preventing extinguishment, Plaintiff therefore receives the relief it requested. The Court 8 accordingly dismisses Plaintiff’s remaining claims as moot. As to Plaintiff’s request for a 9 preliminary injunction pending a determination by the Court concerning the parties’ respective 10 rights and interests, the Court’s grant of summary judgment for Plaintiff also moots this claim, 11 and it is therefore dismissed. 12 IV. 13 14 15 16 17 18 CONCLUSION IT IS HEREBY ORDERED that Plaintiff’s Motion for Partial Summary Judgment, (ECF No. 48), is GRANTED pursuant to the foregoing. IT IS FURTHER ORDERED that Plaintiff’s Supplemental Motion for Partial Summary Judgment, (ECF No. 60), is GRANTED. IT IS FURTHER ORDERED that Plaintiff’s Motion to Stay Case, (ECF No. 49), is DENIED as moot. 19 The Clerk of Court shall enter judgment accordingly and close the case. 20 25 DATED this _____ day of March, 2019. 21 22 23 ___________________________________ Gloria M. Navarro, Chief Judge United States District Court 24 25 Page 12 of 12

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