Ln Mgmt. Llc Series 1936 Via Firenze Vs. Pennymac Holdings, Llc

• Court: Nevada Supreme Court
• Decided: September 16, 2021
• Docket: 81954
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

LN MANAGEMENT LLC SERIES 1936 No;.81954 VIA FIRENZE, Appellant, I. FILE vs. PENNYMAC HOLDINGS, LLC, SEP 6 2021 EUZAB i A. BROWN Res ondent. CLEPF . PREME C URT BY DE CLERK ORDER VACATING AND REMANDING This is an appeal from a district court order granting summary judgment, certified as final under NRCP 54(b), in an action to quiet title. Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge. Reviewing the summary judgment de novo, Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005), we vacate and remand.' In 7510 Perla Del Mar Avenue Trust v. Bank of America, N.A. (Perla), 136 Nev. 62, 63, 458 P.3d 348, 349 (2020), we held that a formal superpriority tender is excused "when evidence shows that the party entitled to payment had a known policy of rejecting such payments." Here, the district court granted summary judgment for respondent based on certain statements in a letter from the HONs agent (Leach Johnson) to Miles Bauer. The letter set forth Leach Johnson's position that the superpriority portion of the HONs lien did not come into existence until after the first deed of trust was foreclosed and that the superpriority portion consisted of fees and costs in addition to 9 months of assessments. This evidence was substantively identical to that in Bank of America, N.A. v.

'Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal.

SUPREME COURT OF NEVADA

101 I947A 2, I -WW2. BC"J lgaa 1fra tir- . il i vlwar s Thomas Jessup, LLC Series VII, Docket No. 73785 (Thomas Jessup) (Order Affirming in Part, Reversing in Part and Remanding, May 7, 2020), wherein we concluded that the evidence was insaficient to satisfy Perla's "known policy of rejection" standard.2 Moreover, the letter expressly stated that "[i]f your client wants to make a partial payment to the Association, then the Association will apply it to the owner's past due balance." Accordingly, respondent did not produce evidence showing that Leach Johnson had a "known policy of rejection" such that formal tender was excused.3 Summary judgment was therefore improper. Similar to appellant's previous appeal, we decline to consider respondent's alternative arguments in support of affirmance that

2If anything, the evidence in this case is even less probative of Leach Johnson's purported "known policy of rejection" standard than that at issue in Thomas Jessup. That said, since our ultimate disposition of Thomas Jessup, we have recognized that the response letter at issue in that case is not necessarily insufficient to satisfy Perlds "known policy of rejection" standard depending on what other evidence and testimony is presented in a particular case. See 928 Country Back Tr. v. Bank of Am., N.A., Docket No. 79543 (Order Vacating Judgment and Remanding, April 9, 2021); Trashed Home Corp. v. Bank of Am., N.A., Docket No. 78923 (Order Vacating Judgment and Remanding, April 9, 2021). In this respect, we note that appellant has not asked for summary judgment to be entered in its favor on remand.

3Respondent contends that this case is similar to U.S. Bank National Assn v. SFR Investments Pool 1, LLC, Docket No. 78003, wherein we considered statements similar to those in Leach Johnson's response letter and concluded that the "necessary implication" behind those statements was that a formal tender would have been rejected. See Order of Reversal and Remand, at *2 (June 4, 2020). However, respondent ignores that we qualified that conclusion. See id. at *2 n.2 ("Appellant contends that this is the necessary implication of these statements, and respondent does not dispute that contention." (emphasis added)).

Sumo.% Cower OF NEVADA 2 ol )1 1447A

2 -3.1wcithag the district court did not address. See LN Mgmt. LLC Series 1936 Via Firenze v. PennyMac Holdings, LLC, Docket No. 76083, Order of Reversal and Remand, at *1-2 (April 16, 2020) (citing 9352 Cranesbill Tr. v. Wells Fargo Bank, N.A., 136 Nev. 76, 82, 459 P.3d 227, 232 (2020), for the proposition that this court may decline to address an issue that the district court did not resolve). Accordingly, we ORDER the judgment of the district court VACATED AND REMAND this matter to the district court for proceedings consistent with this order.4

C.J. Hardesty

Sr.J. Stiglich

cc: Hon. Ronald J. Israel, District Judge Janet Trost, Settlement Judge Kerry P. Faughnan Akerman LLP/Las Vegas Eighth District Court Clerk

4The Honorable Mark Gibbons, Senior Justice, participated in the decision of this matter under a general order of assignment. SUPREME COURT OF NEVADA 3 I947A