Bank of New York Mellon v. Kim

• Court: Nevada Supreme Court
• Decided: April 14, 2017
• Docket: 67758
• Status: Unpublished

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

BANK OF NEW YORK MELLON, F/K/A No. 67758 THE BANK OF NEW YORK, AS TRUSTEE ON BEHALF OF THE HOLDERS OF THE ALTERNATIVE LOAN TRUST 2006-6CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-6CB, FILED Appellant, APR 1 1, 2017 vs. ELIZABETH A. BROWN RICHARD L. KIM, AN INDIVIDUAL; AMY CLERK OF SUPREME COURT

R. KIM, AN INDIVIDUAL; AND SFR By DEPUTY CLERK INVESTMENTS POOL 1, LLC, A NEVADA LIMITED LIABILITY COMPANY, Respondents.

ORDER VACATING AND REMANDING This is an appeal from a district court summary judgment in a judicial foreclosure and quiet title action. Eighth Judicial District Court, Clark County; James Crockett, Judge. In granting summary judgment for respondent SFR Investments, the district court denied appellant's request for a continuance under NRCP 56(0, evidently based solely on appellant's failure to provide the required affidavit. See Choy v. Ameris tar Casinos, Inc., 127 Nev. 870, 872, 265 P.3d 698, 700 (2011). While appellant did not attach the required affidavit to its summary judgment opposition, appellant did file the affidavit contemporaneously with its summary judgment opposition. Under these circumstances, we believe it was error for the district court not to have considered the affidavit's merits. Having reviewed the affidavit, we conclude that appellant sought discovery relevant to the issues of whether the HOA foreclosure sale complied with

SUPREME COURT OF NEVADA

(0) 1947A e 17-12314 state law' and whether the sale was affected by fraud, unfairness, or oppression. Moreover, because the record indicates that appellant was actively pursuing discovery in those respects at the time summary judgment was granted, we conclude that the district court abused its discretion in denying appellant's request for a continuance. Id.

Accordingly, we vacate the district court's summary judgment in favor of respondent SFR Investments. With respect to appellant's claims against respondents Richard and Amy Kim, the viability of those claims is intertwined with the determination of whether the HOA foreclosure sale extinguished appellant's deed of trust. Since we have determined that the district court improperly entered summary judgment before allowing appellant to complete discovery on issues concerning the sale's validity, it would be premature for us to consider whether summary judgment in favor of the Kims was proper. Accordingly, we vacate the district court's summary judgment in favor of the Kims as well. Consistent with the foregoing, we

'Within the confines of this appeal, we are persuaded by SFR Investments' reliance on In re Tracht Gut, LLC, 503 B.R. 804, 817 (B.A.P. 9th Cir. 2014), aff'd, 836 F.3d 1146, 1153-54 (9th Cir. 2016), and Kojima v. Grandote International LLC, 252 F.3d 1146, 1152 (10th Cir. 2001). In particular, those cases support the district court's reasoning with respect to its reasonably-equivalent-value determination, and neither appellant nor amicus curiae addressed those cases (we recognize that amicus curiae did not have the opportunity to address those cases, see NRAP 29(g)). Thus, within the confines of this appeal, appellant was not entitled to summary judgment based upon the Uniform Fraudulent Transfer Act, but appellant should have been permitted to conduct discovery on the issue of whether the foreclosure sale complied with state law.

SUPREME COURT OF NEVADA 2 (0) 1947A e ORDER the judgment of the district court VACATED AND REMAND this matter to the district court for proceedings consistent with this order.

S Hardesty A_,t 441\ J.

asSItearanffi Parraguirre r""eam

/444C4a2 ,J. Stiglich

cc: Hon. James Crockett, District Judge Kathleen J. England, Settlement Judge Wright, Finlay & Zak, LLP/Las Vegas Kim Gilbert Ebron Connaghan Newberry Law Firm McCarthy & Holthus, LLP/Las Vegas Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (0) 1947A