Kk Real Estate Inv. Fund v. Capital One

IN THE SUPREME COURT OF THE STATE OF NEVADA

KK REAL ESTATE INVESTMENT No. 64185 FUND, LLC, A NEVADA LIMITED

LIABILITY COMPANY,

Appellant, vs.

CAPITAL ONE, N.A., SUCCESSOR BY

FILED MERGER TO ING BANK, FSB, A NOV 1 4 2014 NATIONAL ASSOCIATION,

TRACE K. LINDEMAN Resoondent. CLERK OF SUPREME COURT BY DEPUTY CLER

ORDER OF REVERSAL AND REMAND

This is an appeal from a district court order granting a motion to dismiss in a quiet title action. Eighth Judicial District Court, Clark County; Valorie J. Vega, Judge.

The district court granted Capital One's motion to dismiss, finding that KK Real Estate Investment Fund had failed to state a viable claim for relief because NRS 116.3116(2)'s superpriority provision does not extinguish a first security interest. This court's recent disposition in SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 130 Nev. , 334 P.3d 408 (2014), decides that a common-interest community association's NRS 116.3116(2) superpriority lien has true priority over a first security interest, and the association may nonjudicially foreclose on that lien. The district court's decision thus was based on an erroneous interpretation of

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ILI -37653 the controlling law and did not reach the other issues colorably asserted. Accordingly, we

REVERSE the order granting the motion to dismiss AND REMAND this matter to the district court for further proceedings consistent with this order.' cee,17; , J. Hardesty

Douglas411 , 74

CHERRY, J., concurring:

For the reasons stated in the SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 130 Nev. , 334 P.3d 408 (2014), dissent, I disagree that respondent lost its lien priority by virtue of the homeowners association's nonjudicial foreclosure sale. I recognize, however, that SFR Investments is now the controlling law and, thusly, concur in the disposition of this appeal.

'The injunction imposed by our October 30, 2013, order is vacated.

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Alessi & Koenig, LLC

Ballard Spahr, LLP

Eighth District Court Clerk

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