1 DARREN T. BRENNER, ESQ. Nevada Bar No. 8386 2 JAMIE K. COMBS, ESQ. Nevada Bar No. 13088 3 AKERMAN LLP 1635 Village Center Circle, Suite 200 4 Las Vegas, Nevada 89134 Telephone: (702) 634-5000 5 Facsimile: (702) 380-8572 Email: [email protected] 6 Email: [email protected] 7 Attorneys for plaintiff and counter-defendant Bank of America, N.A., successor by merger 8 to BAC Home Loans Servicing, LP 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 BANK OF AMERICA, N.A., SUCCESSOR BY Case No.: 2:16-cv-00776-RFB-GWF MERGER TO BAC HOME LOANS 12 SERVICING, LP, FINDINGS OF FACT, CONCLUSIONS OF 13 Plaintiff, LAW, AND ORDER RE: BANK OF 14 v. AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS 15 ELKHORN COMMUNITY ASSOCIATION; SERVICING, LP'S MOTION FOR RLP COGBURN LLC; and ATC ASSESSMENT PARTIAL SUMMARY JUDGMENT [ECF 16 COLLECTION GROUP, LLC FKA ANGIUS & NO. 42] TERRY COLLECTIONS, LLC, 17 Defendants. 18 AND RELATED CLAIMS. 19 20 Plaintiff and counter-defendant Bank of America, N.A., successor by merger to BAC Home 21 Loans Servicing, LP (BANA)'s motion for partial summary judgment, ECF No. 42, and defendant, 22 Elkhorn Community Association's Motion for Summary Judgment , ECF No. 43, came on for hearing 23 on July 30, 2019. For the reasons stated on the record, the court granted BANA's motion, ECF No. 42, 24 found Elkhorn's foreclosure sale did not extinguish BANA's deed of trust, and dismissed all defendant, 25 counterclaimant and cross-claimant RLP Cogburn, LLC (RLP)'s claims. The court also makes the 26 following findings of fact and conclusions of law supporting its decision to grant BANA's motion for 27 partial summary judgment, ECF No. 42, and to grant the HOA's Motion for Summary Judgment, ECF 1 The court finds the following facts are undisputed: 2 1. Travis Davis obtained a $237,276 loan from Countrywide Bank, FSB in 2007 (the 3 loan). 4 2. Mr. Davis secured the loan with a deed of trust recorded against the property located at 5 7313 Cogburn Street, Las Vegas, Nevada 89131-4529, dated December 28, 2007 and recorded with 6 the Clark County Recorder on January 2, 2008, as Instrument No. 20080102-0000962 (the deed of 7 trust), more fully described as: 8 LOT TWENTY-SIX (26) IN BLOCK ONE (1) OF ELKHORN SPRINGS – PARCEL 5A, AS SHOWN BY MAP THEREOF ON FILE IN BOOK 65 OF PLATS, PAGE 81, 9 AND AMENDED BY CERTIFICATE OF AMENDMENT RECORDED JANUARY 26, 1995 IN BOOK 950126 AS DOCUMENT NO. 00906 AND BY CERTIFICATE 10 OF AMENDMENT RECORDED MARCH 5, 1998 IN BOOK 980305 AS DOCUMENT NO. 00906, IN THE OFFICE OF THE COUNTY RECORDER OF 11 CLARK COUNTY, NEVADA 12 TOGETHER WITH A PARCEL OF LAND LYING IN THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 13 16, TOWNSHIP 19 SOUTH, RANGE 60 EAST M.D.M., CITY OF LAS VEGAS, CLARK COUNTY, STATE OF NEVADA, AND MORE PARTICULARLY 14 DESCRIBED AS FOLLOWS: 15 COMMENCING AT THE SOUTHWEST CORNER (SW 1/4) OF THE SOUTHEAST (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHWEST 16 QUARTER (SW 1/4) OF SAID SECTION 16 AS SHOWN BY MAP THEREOF ON FILE IN SAID FILE 77, PAGE 12 OF SURVEYS: THENCE SOUTH 00° 19'01" 17 WEST, ALONG THE WEST LINE OF THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF THE SOUTHWEST QUARTER (SW 18 1/4) OF SAID SECTION 16, A DISTANCE OF 472.55 FEET TO THE POINT OF BEGINNING: 19 THENCE SOUTH 00°19'01" WEST, A DISTANCE OF 50.50 FEET; 20 THENCE NORTH 89°40'59" WEST, A DISTANCE OF 18.05 FEET; THENCE NORTH 00°57'22" WEST, A DISTANCE OF 50.51 FEET; 21 THENCE SOUTH 89°40'59" EAST, A DISTANCE OF 19.17 FEET TO THE POINT OF BEGINNING, 22 A. P. N.: 125-16-414-035 23 (the property). 24 3. The deed of trust was assigned to BAC Home Loans Servicing, LP (BAC) in 2011. 25 4. BAC merged into BANA in 2011. 26 5. Defendant Elkhorn Community Association, through defendant ATC Assessment 27 Collection Group, LLC f/k/a Angius & Terry Collections, LLC (ATC), recorded a notice of 1 delinquent assessment lien against the property in July 2009. 2 6. Mr. Davis owed $51.75 quarterly assessments in 2008 and $58 quarterly assessments in 3 2009, and was "three quarters" delinquent when Elkhorn initiated foreclosure. 4 7. Mr. Davis did not owe any charges for maintenance or nuisance abatement under NRS 5 116.310312 when Elkhorn initiated foreclosure. 6 8. Elkhorn, through ATC, recorded a notice of default and election to sell against the 7 property in August 2009. 8 9. BAC subsequently made a $1,330.77 payment to ATC, which ATC received on 9 January 19, 2010. 10 10. ATC disbursed $254.77 of the $1,330.77 payment to Elkhorn, which Elkhorn received 11 and applied to Mr. Davis' assessment account. 12 11. Elkhorn admitted BAC remitted its $1,330.77 payment "to satisfy the super-priority 13 portion" of its lien, the payment satisfied its superpriority lien, and that it could only foreclose on the 14 sub-priority portion of its lien as a result, in its briefing. Its counsel also represented on the record at 15 the July 30, 2019 hearing that BAC paid the superpriority amount prior to the sale. 16 12. After accepting BAC's payment, Elkhorn, through ATC, foreclosed on March 28, 2013. 17 13. RLP purchased the property at the sale. 18 Based on the forgoing findings of fact, the court concludes as follows: 19 1. Under Bank of America, N.A. v. SFR Invs. Pool 1, LLC,

(Nev. 2018) and 20 Bank of America, N.A. v. Arlington W. Twilight Homeowners Ass'n,

(9th Cir. 2019), 21 BAC's $1,330.77 payment satisfied Elkhorn's superpriority lien. 22 2. Because BAC's $1,330.77 payment satisfied Elkhorn's superpriority lien, RLP acquired 23 the property subject to the deed of trust. 24 /// 25 /// 26 /// 27 /// 1 NOW, THEREFORE, for the reasons stated on the record, and based on the foregoing findings 2 of fact and conclusions of law, it is HEREBY ORDERED: 3 1. BANA's motion for partial summary judgment, ECF No. 42, is granted. RLP 4 purchased the property subject to BANA's deed of trust, and the deed of trust remains a valid lien on 5 the property; 6 2. The clerk shall enter judgment in favor of BANA on its first cause of action for quiet 7 title/declaratory relief; 8 3. All BANA's claims other than its first cause of action for quiet title/declaratory relief 9 are dismissed as moot; 10 4. The HOA's Motion for Summary Judgment, ECF No. 43, is granted as to the claim of 11 Unjust Enrichment asserted by RLP against the HOA. All RLP's remaining counterclaims and cross- 12 claims are dismissed with prejudice; 13 5. Any lis pendens recorded against the property pertaining to this case is expunged; and 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 6. The clerk shall close this case. 2 SO ORDERED, this _1_1_th_ o f _ _ _ _ S_e_p_t_e_m_b_e_r______, 2019. 3 _______________________________________ 4 The Honorable Richard F. Boulware, II United States District Judge 5 SUBMITTED BY: 6 This the 9th day of August, 2019. 7 /s/ Jamie K. Combs, Esq. 8 DARREN T. BRENNER, ESQ. Nevada Bar No. 8386 9 JAMIE K. COMBS, ESQ. Nevada Bar No. 13088 10 AKERMAN LLP 11 1635 Village Center Circle, Suite 200 Las Vegas, Nevada 89134 12 Attorneys for plaintiff and counter-defendant 13 Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP 14 15 APPROVED AS TO FORM: 16 This the 9th day of August, 2019. 17 /s/ Colli C. McKiever, Esq. 18 EDWARD D. BOYACK, ESQ. 19 Nevada Bar No. 5229 COLLI C. MCKIEVER, ESQ. 20 Nevada Bar No. 13724 BOYACK ORME &ANTHONY 21 7432 W. Sahara Ave., Suite 101 Las Vegas, Nevada 89117 22 23 Attorneys for defendant and cross-defendant Elkhorn Community Association 24 25 26 27