Las Vegas Dev. Grp., LLC v. Blaha
Las Vegas Dev. Grp., LLC v. Blaha
Opinion of the Court
In this opinion, we consider whether the time limitations in NRS 107.080(5)-(6) (2010)
FACTS AND PROCEDURAL HISTORY
This case involves a residential property located in a common-interest community governed by the Nevada Trails II Community Association (HOA). The former homeowner, who is not a party to this case, purchased the property for $456,000 with a loan secured by a first deed of trust that was assigned to respondent Bank of America, N.A. (BANA).
*235On April 12, 2011, the HOA held a nonjudicial foreclosure sale pursuant to NRS Chapter 116. Appellant Las Vegas Development Group, LLC (LVDG) purchased the property at the HOA foreclosure sale for $5,200, and recorded the deed on April 13, 2011. Approximately five months later, on August 29, 2011, BANA conducted a foreclosure sale pursuant to NRS Chapter 107, at which respondent EZ Properties, LLC, purchased the property for $151,300. EZ then sold the property to respondent James R. Blaha for $208,000, and Blaha recorded his deed on September 30, 2011.
On March 19, 2015, LVDG filed a complaint in the district court, asserting five causes of action against all of the respondents: (1) quiet title, (2) equitable mortgage, (3) slander of title, (4) wrongful foreclosure, and (5) rescission. LVDG also asserted a cause of action for unjust enrichment against BANA, Recontrust Company, N.A., and EZ, and a cause of action for conversion against BANA and Recontrust. LVDG relied on SFR Investments Pool I, LLC v. U.S . Bank, N.A.,
Blaha moved for summary judgment, arguing primarily that LVDG's claims were barred by the statute of limitations in NRS 107.080(5)-(6) because LVDG failed to file the complaint within 90 or 120 days of the deed-of-trust foreclosure sale. Blaha also argued that the slander of title claim should be dismissed as untimely under NRS 11.190(4)(c) (2010). In response, LVDG contended that the time limitations in NRS 107.080(5)-(6) did not apply to its claims because the deed-of-trust foreclosure sale was void ab initio. LVDG did not oppose summary judgment for the slander of title claim. The district court granted Blaha's motion for summary judgment on the slander of title claim and concluded that the 90- or 120-day statute of limitations in NRS 107.080(5)-(6) barred all of LVDG's remaining causes of action.
LVDG appeals from the grant of summary judgment. Accordingly, the narrow issue we consider is whether NRS 107.080(5)-(6) applies to challenges to the authority behind a NRS Chapter 107 nonjudicial foreclosure sale.
DISCUSSION
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." NRCP 56(c). "This court reviews a district court's grant of summary judgment de novo, without deference to the findings of the lower court." Wood v. Safeway , Inc.,
"When a statute's language is plain and unambiguous, we will give that language *236its ordinary meaning." McGrath v. State, Dep't of Pub. Safety,
LVDG argues that NRS 107.080(5)-(6) governs only procedural defects in the manner in which an NRS Chapter 107 nonjudicial foreclosure sale is conducted, and thus does not apply to LVDG's action, which challenges the authority behind the foreclosure sale. LVDG contends that because the HOA foreclosure sale extinguished the first deed of trust, BANA had no security interest in the property and thus no authority to foreclose on the property. LVDG argues that the plain language of NRS 107.080(5) presumes that the individual conducting the sale has authority to do so, which further demonstrates that NRS 107.080(5)-(6) does not apply to situations where the foreclosing entity lacks the proper authority to foreclose. Blaha contends that the time limitations in NRS 107.080(5)-(6) apply to all challenges to NRS Chapter 107 nonjudicial foreclosure sales. Blaha argues that the legislative history, which demonstrates that the Legislature's intent in enacting NRS 107.080(5)-(6) was to ensure that individuals could not overturn foreclosure sales indefinitely, supports this position.
NRS 107.080 governs nonjudicial deed-of-trust foreclosure sales and sets forth the substantive requirements and procedures for such sales. Subsection 5(a) states that a sale under "this section may be declared void" if the individual "authorized to make the sale does not substantially comply with the provisions of this section or any applicable provision of NRS 107.086 and 107.087."
According to Blaha, we previously determined that NRS 107.80 applies to all challenges to a nonjudicial foreclosure sale in Building Energetix Corp. v. EHE, LP,
Blaha also contends that the application of NRS 107.080(5)-(6) to all claims challenging an NRS Chapter 107 foreclosure sale is consistent with the legislative history of the statute, which indicates that the legislators were concerned about individuals having the ability to reverse a foreclosure sale indefinitely. While that concern was stated at the hearing on the legislation, it was in the context of the statutory violations of NRS 107.080. See Hearing on S.B. 217 Before the Senate Judiciary Comm., 74th Leg. (Nev., March 21, 2007); Hearing on S.B. 217 Before the Assembly Judiciary Comm., 74th Leg. (Nev., May 2, 2007). The legislators did not discuss scenarios where the deed of trust is void. Thus, we conclude that the legislative history supports the plain language of NRS 107.080 and demonstrates that the legislators were not contemplating challenges to a foreclosing entity's authority. See Hearing on S.B. 217 Before the Senate Judiciary Comm., 74th Leg. (Nev., March 21, 2007).
After our consideration of the issue in this case, we agree with LVDG that there are instances apart from those enumerated in NRS 107.080(5) in which a court may set aside a nonjudicial foreclosure sale. See, e.g ., Shadow Wood Homeowners Ass'n, Inc. v. N.Y . Cmty . Bancorp , Inc., 132 Nev. ----,
LVDG's complaint primarily sought to quiet title to the property and have BANA's foreclosure sale of the property declared void because the first deed of trust had been extinguished by the earlier HOA foreclosure sale. Based on LVDG's arguments under SFR Investments Pool,
Our decision aligns with Nevadans federal courts that have considered this same issue. For example, in Las Vegas Development Group, LLC v. Yfantis , the defendant similarly argued that the plaintiff's claims for wrongful foreclosure were time-barred by NRS 107.080(5).
We concur:
Douglas, C.J.
Cherry, J.
Gibbons, J.
Pickering, J.
Parraguirre, J.
Stiglich, J.
NRS 107.080 was amended after 2010. See, e.g., 2011 Nev. Stat., ch. 81, § 9, at 332. However, because a notice of default and election to sell was recorded in April 2011 in this case, prior to the effective date of the amendments, all references in this opinion are to the 2010 statute in effect at the time of the notice. See 2010 Nev. Stat. 26th Spec. Sess., ch. 10, § 31, at 77-79.
The loan was initially secured through Countrywide Bank, FSB, and was then assigned to BAC Home Loans Serving, LP, which eventually merged with BANA.
Respondents Blaha and his lender, Noble Home Loans, Inc., filed a joint answering brief. Respondents BANA and Recontrust Company, N.A., the trustee of the first deed of trust, filed a joinder to the answering brief. We refer to these respondents collectively as Blaha. We note that respondents EZ and K&L Baxter Family Limited Partnership failed to file an answering brief, and we treat this failure as a confession of error as to these respondents. See NRAP 31(d)(2).
LVDG also argues that the district court erred by entering a written order that contained factual issues not discussed at the hearing on the motion for summary judgment. LVDG does not provide authority for its argument; thus, LVDG fails to cogently argue the issue and we decline to decide it. See Edwards v. Emperor's Garden Rest,
NRS 107.086 (2010) included "[a]dditional requirements for sale of owner-occupied housing: Notice; form; election of mediation; adoption of rules concerning mediation; applicability." NRS 107.087 (2010) provided the requirements for the notice of default and election to sell and the notice of sale for a residential foreclosure.
Blaha also contends that we previously held that all challenges to a nonjudicial foreclosure sale are subject to NRS 107.080 's time limitations in Michniak v. Argent Mortgage Co., LLC, Docket No. 56334 (Order of Affirmance, Dec. 14, 2012). First, we caution counsel that pursuant to NRAP 36(c)(3), parties can only cite to unpublished dispositions as persuasive authority if they were "issued by the Supreme Court on or after January 1, 2016." Nevertheless, we emphasize that in Michniak, the appellant focused its appeal, including its claim for quiet title, only on the provisions of NRS 107.080. Thus, we held that his claims were barred by the time limitations in NRS 107.080. Here, LVDG does not focus its claims on the procedural provisions of NRS 107.080. Thus, Blaha's reliance on Michniak is misplaced.
Similarly, Blaha's reliance on Tai-Si Kim v. Kearney,
The parties do not argue, nor do we reach, whether LVDG's remaining causes of action may be time-barred under other statutes of limitations. Rather, our holding is limited to concluding that, because the remaining causes of action are dependent on the validity of BANA's foreclosure sale, those causes of action are not governed by NRS 107.080(5)-(6).
Reference
- Full Case Name
- LAS VEGAS DEVELOPMENT GROUP, LLC, a Nevada limited liability company v. James R. BLAHA, an individual Bank of America, N.A., a National Banking Association, as Successor by Merger to BAC Home Loans Servicing, LP Recontrust Company, N.A., a Texas corporation EZ Properties, LLC, a Nevada limited liability company K&L Baxter Family Limited Partnership, a Nevada limited partnership and Noble Home Loans, Inc., f/k/a FCH Funding, Inc., an unknown corporate entity
- Cited By
- 12 cases
- Status
- Published