Nevada Appellate Court Summaries (3-31-19)

The content of this post was written by Joe Tommasino for COMMUNIQUÉ, the official publication of the Clark County Bar Association (CCBA).*

Supreme Court of Nevada: 

Foreclosure: (1) Each party in a quiet-title action has the burden of demonstrating superior title in himself or herself; (2) once a bid is accepted and payment is made, the foreclosure sale is complete and title vests in the purchaser, and the person conducting the sale has no discretion to refuse to issue the foreclosure deed; and (3) the correct standard for determining whether to set aside a sale on equitable grounds is whether there has been some showing of fraud, unfairness, or oppression affecting the sale.Here, the purchaser demonstrated superior title by showing that it paid the sales price following a valid foreclosure sale. The burden of demonstrating that the delinquency was cured presale, rendering the sale void, was on the party challenging the foreclosure, who failed to meet its burden. Because the district court correctly found that there was no showing that fraud, unfairness, or oppression affected the sale, the Supreme Court of Nevada held that title vested in the purchaser’s name and that the district court abused its discretion by setting aside the sale. Resources Grp., LLC v. Nevada Ass’n Serv.’s, Inc., 135 Nev. Adv. Op. No. 8, ___ P.3d ___ (March 14, 2019).

Homeowners’ associations (HOA’s): (1) In SFR Investments Pool 1, LLC v. U.S. Bank, NA. , 130 Nev. 742, 334 P.3d 408 (2014), the Supreme Court of Nevada held that NRS 116.3116(2) provides a homeowners’ association (HOA) with a “superpriority” lien that, when properly foreclosed, extinguishes a first deed of trust; (2) subsequently, in Bank of America, N.A. v. SFR Investments Pool I, LLC, 134 Nev., Adv. Op. 72, 427 P.3d 113 (2018), the Court held that a deed-of-trust beneficiary can preserve its deed of trust by tendering the superpriority portion of the HOA’s lien before the foreclosure sale is held; (3) an offer to pay the superpriority amount in the future, when that amount is determined, does not constitute a tender sufficient to preserve the first deed of trust under Bank of America; and (4) a formal tender is excused when the party entitled to payment represents that if a tender is made, it will be rejected. The generally accepted rule is that a promise to make a payment at a later date or once a certain condition has been satisfied cannot constitute a valid tender. Thus, in the instant case, the offer to pay the yet-to-be-determined superpriority amount was not sufficient to constitute a valid tender. Separately, the Court explained that a bank’s obligation to tender the superpriority amount was excused because the respondent stated in a fax that the respondent would reject any such tender if attempted. Such a situation invokes a generally accepted exception to the above-mentioned rule. Here, the offer to pay the superpriority portion of a lien, combined with the respondent’s rejection of that offer, operated to cure the default as to that portion of the lien such that the ensuing foreclosure sale did not extinguish the first deed of trust. The district court committed legal error in concluding otherwise. Bank of America, N.A. v. Thomas Jessup, LLC Ser. VII, 135 Nev. Adv. Op. No. 7, ___ P.3d ___ (March 7, 2019).


About the author: Joe Tommasino has served as Staff Attorney for the Las Vegas Justice Court since 1996.  Joe is the President of the Nevada Association for Court Career Advancement (NACCA).

*© 2019 Clark County Bar Association and Joe Tommasino. The content on this page was originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (March 2019). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.