U.S. Bank National Association, as Trustee, Successor in Interest to Wachovia Bank National Association, as Trustee for GSAA Home Equity Trust 2005-11 v. Thunder Properties, Inc. et al

Filing 38

ORDER that U.S. Bank's motion for summary judgment (ECF No. 29 ) is granted on its quiet title claim; Thunder's motion to exceed page limit (ECF No. 31 ) is granted; Clerk directed to enter judgment and close this case. Signed by Judge Miranda M. Du on 2/6/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE, SUCCESSOR-ININTEREST TO WACHOVIA BANK
NATIONAL ASSOCIATION, AS
TRUSTEE FOR GSAA HOME EQUITY
TRUST 2005-11, ASSETBACKED
CERTIFICATES, SERIES 2005-11,

Case No. 3:17-cv-00106-MMD-WGC
ORDER

Plaintiff,

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v.
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THUNDER PROPERTIES, INC.;
WOODLAND VILLAGE HOMEOWNERS
ASSOCIATION; and HAMPTON &
HAMPTON COLLECTIONS, LLC,
Defendants.

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I.

SUMMARY

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This dispute arises from the foreclosure sale of property to satisfy a homeowners’

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association lien. Before the Court is Plaintiff U.S. Bank’s motion for summary judgment

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(ECF No. 29). The Court has reviewed Defendant Thunder Properties, Inc.’s (“Thunder”)

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response (ECF No. 30); Defendant Woodland Village Homeowners Association’s (“HOA”)

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response (ECF No. 32); and U.S. Bank’s reply (ECF No. 36). The Court grants U.S. Bank’s

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motion for summary judgment because U.S. Bank tendered the superpriority amount of

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the HOA’s lien.

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II.

BACKGROUND

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The following facts are undisputed unless otherwise indicated.

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Daniel Ireton (“Borrower”) executed a note (“Note”) and first deed of trust (“DOT”)

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in May 2004 in exchange for a loan in the amount of $217,500 (“Loan”) to purchase real

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property (“Property”) located within the HOA at 17270 Posy Lake Ct., Reno, NV 89508.

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(ECF No. 29 at 3.)
All beneficial interest in the DOT was assigned to various entities before eventually

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being assigned to U.S. Bank on September 22, 2014. (Id. at 4.)

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The Borrower failed to pay HOA assessments, and the HOA’s agent, Hampton &

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Hampton Collections, LLC (“HOA Trustee”), recorded a notice of delinquent assessment

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lien on May 17, 2010. (Id.; see also ECF No. 1-7.) The HOA Trustee recorded a notice of

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election and default to sell on June 22, 2010. (ECF No. 30-3.)

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U.S. Bank’s predecessor—Bank of America, N.A. (“BANA”)—obtained a

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superpriority lien payoff demand from the HOA and HOA Trustee through BANA’s legal

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counsel, the law firm Miles, Bauer, Bergstrom & Winteres, LLP (“Miles Bauer”) on October

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11, 2010, requesting payment of $297. (ECF No. 29 at 5; ECF No. 30 at 6.) Miles Bauer

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tendered the amount, and the HOA Trustee accepted. (ECF No. 29 at 5.)

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The HOA Trustee then recorded a second notice of default and election to sell on

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August 26, 2013. (Id. at 4; see also ECF No. 30-4.) The HOA Trustee also recorded a

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notice of trustee’s sale on January 24, 2014. (ECF No. 29 at 4; see also ECF No. 1-9.)
The sale (“HOA Sale”) occurred on February 26, 2014, and Thunder purchased the

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Property for $10,000. (ECF No. 29 at 5.)

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U.S. Bank filed the Complaint on February 16, 2017, asserting the following claims

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for relief: (1) quiet title/declaratory relief under 28 U.S.C. § 2201, NRS § 30.010 et seq.,

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and NRS § 40.010; (2) declaratory relief under the Fifth and Fourteenth Amendments; (3)

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quiet title under the Fifth and Fourteenth Amendments; (4) permanent and preliminary

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injunction against Thunder; and (5) unjust enrichment against Thunder. (ECF No. 1 at 12-

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18.)

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III.

LEGAL STANDARD

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“The purpose of summary judgment is to avoid unnecessary trials when there is no

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dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18

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F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings,
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the discovery and disclosure materials on file, and any affidavits “show that there is no

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genuine issue as to any material fact and that the moving party is entitled to a judgment

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as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is

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“genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could

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find for the nonmoving party and a dispute is “material” if it could affect the outcome of the

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suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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Where reasonable minds could differ on the material facts at issue, however, summary

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judgment is not appropriate. See id. at 250-51. “The amount of evidence necessary to

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raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the

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parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897,

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902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89

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(1968)). In evaluating a summary judgment motion, a court views all facts and draws all

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inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v.

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Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

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The moving party bears the burden of showing that there are no genuine issues of

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material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the

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moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the

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motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson,

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477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must

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produce specific evidence, through affidavits or admissible discovery material, to show

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that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991),

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and “must do more than simply show that there is some metaphysical doubt as to the

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material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere

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existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.”

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Anderson, 477 U.S. at 252.

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IV.

DISCUSSION

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U.S. Bank argues that it is entitled to summary judgment because Miles Baeur’s

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tender discharged the superpriority lien. (ECF No. 29 at 8.) Thunder and the HOA make

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numerous arguments in their responses that the Court need not consider because the

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Court agrees that the tender preserved the DOT. Accordingly, the Court will only address

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the parties’ arguments about tender.

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Thunder argues that the tender related to a different foreclosure proceeding. (ECF

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No. 30 at 8.) U.S. Bank responds that there was only one foreclosure proceeding. (See

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ECF No. 36 at 3.) The Court agrees with U.S. Bank. While the HOA Trustee recorded two

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notices of default and election to sell, one on June 22, 2010 (ECF No. 30-3), and the other

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on August 26, 2013 (ECF No. 30-4), there is only evidence of one notice of delinquent

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assessment in the record (ECF No. 1-7). It is the notice of delinquent assessment—not

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the notice of default and election to sell—that initiates a foreclosure proceeding. See

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Saticoy Bay LLC Series 6212 Lumber River v. Bank of Am., N.A., 430 P.3d 531, 2018 WL

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6133938, at *1 n.1 (Nev. 2018) (citing Property Plus Invs., LLC v. Mortg. Elec. Registration

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Sys., 401 P.3d 728, 731-32 (Nev. 2017)) (“For the HOA to foreclose on a lien consisting

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of unpaid assessments that accrued after Bank of America satisfied the previous lien, the

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HOA needed to issue a new notice of delinquent assessment and notice of default.”); see

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also U.S. Bank Nat’l Ass’n as Tr. for Mortg. Loan Pass-Through Certificates, Series 2005-

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08 v. Heritage Estates Homeowners Ass’n, No. 2:16-cv-01385-GMN-CWH, 2019 WL

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346399, at *8 (D. Nev. Jan. 28, 2019) (citing Prop. Plus Invs., LLC, 401 P.3d at 730)

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(“[N]ew charges would not factor into an HOA’s superpriority lien absent a new notice of

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delinquent assessments.”). Given that Thunder has produced no evidence of a second

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notice of delinquent assessment (see ECF No. 30 at 8-9), the Court rejects Thunder’s

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contention that the HOA initiated a second, separate foreclosure proceeding.

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Thunder further argues that the tender was ineffective because BANA paid

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assessments that accrued between January 2010 through September 2010 rather than

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assessments that accrued in the nine months before the HOA lien was recorded
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(September 2009 through May 2010). (ECF No. 30 at 9.) U.S. Bank argues that the total

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amount of nine months of assessments must have been $297 or less because the amount

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of quarterly assessments was $96 in 2009 and $99 in 2010. (ECF No. 36 at 3.) U.S. Bank

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also argues that BANA paid the exact amount demanded by the HOA. (Id.) Given that the

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tender equaled the maximum total of nine months of HOA assessments, the Court finds

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that Thunder has failed to create a genuine issue of material fact as to whether BANA paid

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the assessments that made up the HOA lien.

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Thunder further argues that the tender was ineffective because BANA’s conditional

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offer to pay was not an effective tender and because BANA’s purported superpriority

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payment was an unrecorded interest in property and therefore ineffective to preserve its

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lien. (ECF No. 30 at 10-14.) The Nevada Supreme Court rejected these arguments in Bank

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of Am., N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d 113, 118-21 (Nev.), as amended on denial

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of reh’g (Nov. 13, 2018).

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Thunder filed a motion to exceed the thirty-page limit prescribed by LR 7-4 (ECF

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No. 31), and U.S. Bank opposed the motion (ECF No. 35). The Court considered the

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arguments raised in Thunder’s overlong response and thus grants the motion.

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Nevertheless, the Court grants summary judgment in favor of U.S. Bank on its quiet title

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claim and declares that U.S. Bank’s DOT survived the HOA Sale. In the Complaint, U.S.

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Bank primarily requests a declaration that its DOT survived the HOA Sale. The other relief

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requested (except for injunctive relief) is requested in the alternative. Given that U.S. Bank

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has received the relief it requested, the Court dismisses U.S. Bank’s remaining claims as

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moot.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the motions before

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the Court.

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It is therefore ordered that U.S. Bank’s motion for summary judgment (ECF No. 29)

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is granted on its quiet title claim. The Court declares that the HOA Sale did not extinguish

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U.S. Bank’s DOT. U.S. Bank’s remaining claims are dismissed as moot.

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It is further ordered that Thunder’s motion to exceed page limit (ECF No. 31) is
granted.

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It is further ordered that the Clerk of the Court enter judgment and close this case.

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DATED THIS 6th day of February 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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