Three days after filing its complaint, BB&T held a trustee's 

sale for the relevant property. Notably, BB&T failed to amend its 

complaint or make any application for a deficiency judgment within six 

months of the trustee's sale. Giordano then filed a motion to dismiss per 

NRCP 12(b)(5), which the district court granted based on BB&T's failure 

to comply with NRS 40.455. BB&T challenges the district court's decision, 

arguing that anti-deficiency protections do not apply when an obligee files 

a pre-foreclosure complaint under NRS 40.495(2) and then forecloses on 

the property before the district court awards a judgment under NRS 

40.495(4)(b). 

DISCUSSION 

This court reviews a district court's order granting a motion to 

dismiss for failure to state a claim under "a rigorous, de novo standard." 

Pack v. LaTourette, 128 Nev. , 277 P.3d 1246, 1248 (2012). In 

reviewing the sufficiency of the claim, this court "accept[s] the plaintiff[']s 

factual allegations as true and then determine[s] whether these 

allegations are legally sufficient to satisfy the elements of the claim 

asserted." Id. at , 277 P.3d at 1248. 

Generally, NRS 40.455 requires a party seeking a deficiency 

judgment to file an application with the court within six months after a 

trustee's sale. In Lavi v. Branch Banking & Trust Company, we held that 

waiver of the one-action rule does not waive anti-deficiency protections, 

and that those protections are available upon foreclosure, even when a 

separate action is brought under NRS 40.495(2). 1 See 130 Nev. 

1Giordano's waiver of anti-deficiency protections is unenforceable. 

See NRS 40.453. 

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325 P.3d 1265, 1267-68 (2014). Additionally, NRS 40.495(3) specifically 

permits a guarantor to assert the anti-deficiency protections under NRS 

40.451 to 40.4639 when an "obligee maintains an action to foreclose or 

otherwise enforce a mortgage or lean and the indebtedness or obligations 

secured thereby. . . ." Although we did not directly address NRS 40.495(4) 

in Lavi, we stated that the subsection could be harmonized with that 

case's outcome because it "does not deny applicability of the deficiency 

judgment defenses or the six-month deadline," but "governs the amount 

due from the guarantor. . . ." See id. at , 325 P.3d at 1268. 

BB&T's failure to timely file its application for a deficiency 

judgment with the court per NRS 40.455 was fatal. That BB&T brought 

the action under NRS 40.495(2) does not change the outcome. Once BB&T 

completed the foreclosure sale, Giordano was entitled to raise antideficiency protections, including NRS 40.455, pursuant to NRS 40.495(3). 

As Lavi clarified, the Legislature's addition of NRS 40.495(4) has no effect 

on this analysis. Therefore, the district court did not err by granting 

Giordano's motion to dismiss. 2 

2We reject BB&T's alternative assertion that it is entitled to amend 

its complaint to comply with NRS 40.455. Despite BB&T's arguments to 

the contrary, NRS 40.430 does not incorporate the anti-deficiency statutes 

into its provisions, and therefore, NRS 40.435(2) is not applicable. 

Moreover, we do not believe that equity or justice requires an alternative 

outcome. 

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Chsza 

Cherry 

J. 

Accordingly, we ORDER the judgment of the district court 

AFFIRMED. 

J. 

Hardesty 

cc: Hon. Gloria Sturman, District Judge 

Michael H Singer, Settlement Judge 

Sylvester & Polednak, Ltd. 

Gordon Silver 

Eighth District Court Clerk 

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