### No. 81453


# FILE

MAY 2 0 2022

EL1ZA3 BROOM CLERK OF 6U C BY 

### IN THE SUPREME COURT OF THE STATE OF NEVADA

SATICOY BAY LLC SERIES 8149 PALACE MONACO, Appellant,

VS. 

### WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN TRUST, PASS-THROUGH CERTIFICATES SERIES 2005-11, Res • ondent.

ORDER OF REVERSAL AND REMAND

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.'

The district court granted summary judgment for respondent, concluding that the first deed of trust survived the HOA's 2013 foreclosure sale. As the basis for its conclusion, the district court found that respondent produced evidence showing that the former homeowner made payments on his outstanding balance and that the HOA's agent allocated those payments to the superpriority portion of the HOA's lien, thereby curing the default as

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

SUPREME COURT OF NEVADA

(0) 1947A ctiGisto that portion of the lien. Cf. 9352 Cranesbill Tr. v. Wells Fargo Bank

(Cranesbill), N.A., 136 Nev. 76, 78-80, 459 P.3d 227, 230-31 (2020) (holding that a homeowner, and not just a first deed of trust beneficiary, can cure a superpriority default so long as the homeowner's payments are allocated to that portion of the HONs lien).

Appellant contends that reversal is warranted because (1) respondent did not produce sufficient evidence showing that the homeowner's payments were allocated to the superpriority portion of the HONs lien, (2) appellant was protected as a bona fide purchaser, or (3) respondent's 2018 quiet title counterclaim was time-barred. We disagree with appellant's first two arguments but conclude that remand is necessary to determine whether respondent's counterclaim was timely. 2

With respect to appellant's first argument, respondent contends that it produced evidence in the form of "Payoff Allocation Report[s] from the HONs agent showing that the agent allocated the homeowner's payments to the superpriority portion of the HOA's lien. And to combat appellant's sole argument in district court that respondent needed to produce evidence directly frorn the HOA showing how the HOA would have allocated the payments, respondent relied on the HONs interrogatory responses wherein it stated that it in essence deferred to its agent's allocation policy. We conclude that this evidence is sufficient to show that the HOA chose to allocate the homeowner's payments to the superpriority

2 1n light of these conclusions, we need not address the parties' remaining arguments.

2portion of the HOA's lien. 3 See Cranesbill, 136 Nev. at 80-81, 459 at 231-32 (recognizing that if the debtor does not choose how to allocate the payments, the creditor has the right to choose how to allocate the payments).

With regard to appellant's second argument that it is a bona fide purchaser and that evidence of the payment needed to be recorded, we recently reiterated that those arguments are inapposite because satisfying the superpriority portion of an HOA's lien preserves a first deed of trust as a matter of law and does not constitute a "conveyance" that needs to be recorded. 4

See Saticoy Bay LLC Series 133 McLaren v. Green Tree Servicing LLC, 136 Nev., Adv. Op. 85, 478 P.3d 376, 379 (2020) ("While a court's authority to look beyond a foreclosure deed in a quiet title action is an inherent equitable power, a valid superpriority tender cures a default 'by operation of law'—that is, without regard to equitable considerations." (internal citation omitted)); id. (rejecting the argument that evidence of a tender needs to be recorded because "Rjendering the superpriority portion

3For the first time on appeal, appellant contends that the agent's allocation contradicted the homeowner's choice regarding how to allocate the payments, as is purportedly reflected in a June 2013 "Payment Agreemenr between the homeowner and the agent. Even if this argument were not waived, .see Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), it lacks merit because the homeowner's May 2013 payment shown on the agent's May 2013 "Payment Allocation Report" preceded the June 2013 "Payment Agreemene and was itself sufficient to satisfy the superpriority portion of the HOA's lien.

4To the extent appellant suggests that this holding somehow contradicts the foreclosure deed's recital that there was a "default," we note that this recital remains accurate even after the superpriority default has been cured because the subpriority portion of an HOA's lien remains in default.

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OF NEVADA 3
« 1947A Cla•of an HOA lien does not create, alienate, assign, or surrender an interest in

land" (quoting Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 134 Nev. 604, 609, 427 P.3d 113, 119 (2018))). Accordingly, the district court correctly determined that the superpriority portion of the HOA's lien was satisfied before the foreclosure sale.

With regard to appellant's third argument, we recently held in U.S. Bank, N.A. v. Thunder Properties, Inc., 138 Nev., 503 P.3d 299 (2022), that NRS 11.220s four-year limitations period governs a deed of trust beneficiary's quiet title claim in situations such as in this case. We further held that an HOA's foreclosure sale itself is not sufficient to trigger the limitations period and that, instead, "the statute of limitations should not run against a lienholder until it has something closely analogous to 'notice of disturbed possession, such as repudiation of the lien." Id. at 306 (quoting Berberich v. Bank of Am., N.A., 136 Nev. 93, 97, 460 P.3d 440, 443 (2020)). Thus, under Thunder Properties, we are unable to determine as a matter of law whether respondent's 2018 counterclaim challenging the effect of the HOA's 2013 foreclosure sale was timely. Cf. Winn v. Sunrise Hosp. & Med. Ctr., 128 Nev. 246, 253, 277 P.3d 458, 463 (2012) (The appropriate accrual date for the statute of limitations is a question of law only if the facts are uncontroverted." (internal alteration and quotation marks omitted)). Accordingly, we reverse the district court's judgment in favor of respondent and remand for consideration of appellant's statute-of-limitations argument in light of Thunder Properties. Consistent with the foregoing, we

SUPREME COURT OF NEVAOA

)1 1947A 4Parraguirre



### -16—A , J. Hardesty Gibbon;" r. J.

ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order. 5

cc: Hon. Ronald J. Israel, District Judge TRILAW Law Offices of Michael F. Bohn, Ltd. Troutman Pepper/Atlanta Wright, Finlay & Zak, LLP/Las Vegas Eighth District Court Clerk

5The Honorable Mark Gibbons, Senior Justice, participated in the decision of this matter under a general order of assignment.

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OF NEVADA

101 ]9-17A c'N l rp• 5