The Court of Appeals of Nevada recently found that a lender’s deed of trust survived an HOA foreclosure because the lender had tendered the delinquent payments before the sale, even if it had not tendered allegedly-owed maintenance fees.  See Williston Investment Group, LLC, v. Nationstar Mortgage, LLC, 2019 WL 7161724 (Nev. App. Dec. 20, 2019).  In the case, the original homeowner defaulted on his HOA fees.  The HOA’s foreclosure agent then filed a notice of delinquent assessment lien against the property.  The defendant lender holding a deed of trust on the property tendered payment for nine months of delinquent payments, which the agent accepted.  The HOA nonetheless foreclosed, and plaintiff purchased the property at the sale.  Plaintiff brought this action seeking to extinguish the deed of trust held by defendant.  Defendant counterclaimed for quiet title and the parties cross-moved for summary judgment.  The trial court found that the HOA’s foreclosure agent failed to properly serve the original property owner, quieted title in favor of that owner, and found that the property remained subject to defendant’s deed of trust because the foreclosure was void.

On appeal, the Court partially reversed and partially affirmed the trial court’s order.  First, the Court found that there was no evidence that the original owner was prejudiced by the apparent lack of notice, and reversed the decision vacating the foreclosure sale.  Thus, it found that plaintiff owned the property.  Nonetheless, the Court found that defendant’s deed of trust survived the sale due to defendant’s tender.  Although plaintiff argued that defendant’s tender did not satisfy the HOA’s superpriority lien because the tender did not include a reserve for “later maintenance and nuisance-abatement charges,” the Court found that there was no evidence of such charges, and that there was no law saying that a lender paying off HOA liens also needs to pay for such unincurred charges.  Accordingly, the Court found that defendant’s deed of trust survived the sale.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com or Anthony Lombardo at alombardo@riker.com.