Chen v. Bank of America, N.A.

• Court: Nevada Supreme Court
• Decided: January 17, 2019
• Docket: 72507
• Status: Unpublished

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

ZIXIAO CHEN, AN INDIVIDUAL, No. 72507 Appellant, vs. BANK OF AMERICA, N.A., A NATIONAL ASSOCIATION, Respondent. Ei CLER

1SY ORDER OF AFFIRMANCE This is an appeal from a district court order granting summary judgment in an action to quiet title. Eighth Judicial District Court, Clark County; Gloria Sturman, Judge. Reviewing the summary judgment de novo, Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005), we affirm." The district court correctly determined that respondent Bank of America's agent tendered $1,179 to Red Rock Financial Services, which undisputedly represented 9 months of assessments. See Bank of America,

N.A. v. SFR Investments Pool 1, LLC, 134 Nev., Adv. Op. 72, 427 P.3d 113, 117 (2018) (stating that, as explained in prior decisions, "[a] plain reading of [NRS 116.3116(2) (2012)] indicates that the superpriority portion of an HOA lien includes only charges for maintenance and nuisance abatement, and nine months of unpaid [common expense] assessments"). The tender of the defaulted superpriority portion of the HOA's lien cured the default as to that portion of the lien such that the ensuing foreclosure sale did not extinguish the first deed of trust. Id. at 118-121. Appellant contends that (1) Bank of America's tender was ineffective because it imposed conditions, (2) Bank of America needed to

SUPREME COURT 'Pursuant to NRAP 3401), we have determined that oral argument OF NEVADA is not warranted in this appeal. (0) 1947A (e4 p9 -07, r0 Y ta' E.: record evidence of the tender, and (3) appellant is protected as a bona fide purchaser, but we recently rejected similar arguments. Id. We are not

persuaded by appellant's argument that the letter accompanying the check conditioned acceptance of the tender as an agreement that the entire unpaid balance was being paid in full. To the contrary, the letter expressly stated that "BANA's financial obligations towards the HOA . . . have now been 'paid in full." (emphasis added). 2 Cf. 1982 Uniform Common Interest Ownership Act, § 3-116 cmt. 1 (observing that a secured lender can protect its security interest by paying the superpriority portion of an HOA's lien); 1994 & 2008 Uniform Common Interest Ownership Acts, § 3-116 cmt. 2 (same). We decline to consider appellant's remaining arguments regarding supposed improper conditions imposed in the letter, as well as appellant's suggestion that Bank of America did not introduce evidence to support its tender, because those arguments were not preserved below. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). In sum, the district court correctly determined that appellant took title to the property subject to the first deed of trust. We therefore ORDER the judgment of the district court AFFIRMED.

Hardesty

J. Stiglich Silver

2 County of Clark v. Blanchard Construction Co. is not contrary to Bank of America, as the tendering party in that case tendered less than the SUPREME COURT amount actually owed. 98 Nev. 488, 493, 653 P.2d 1217, 1221 (1982). OF NEVADA 2 (0) 1947 cc: Hon. Gloria Sturman, District Judge The Law Office of Mike Beede, PLLC Akerman LLP/Las Vegas Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 0) 1947A