JAN 2 8 2016 

K. LINDEMAN 

E CO 

932 Net, Advance Opinion .5 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

SHADOW WOOD HOMEOWNERS 

ASSOCIATION, INC.; AND GOGO WAY 

TRUST, 

Appellants, 

vs. 

NEW YORK COMMUNITY BANCORP, 

INC., 

Respondent. 

No. 63180 

FILED 

Appeal from a district court order granting summary 

judgment in a quiet title and declaratory relief action. Eighth Judicial 

District Court, Clark County; Abbi Silver, Judge. 

Vacated and remanded. 

Holland & Hart LLP and Patrick John Reilly, Las Vegas; Alessi & Koenig, 

LLC, and Bradley D. Bace, Las Vegas; Tharpe & Howell and Ryan M. 

Kerbow, Las Vegas, 

for Appellant Shadow Wood Homeowners Association, Inc. 

Law Offices of Michael F. Bohn, Ltd., and Michael F. Bohn, Las Vegas, 

for Appellant Gogo Way Trust. 

Brooks Hubley LLP and Gregg A. Hubley, Las Vegas; Pite Duncan, LLP, 

and Kenitra A. Cavin, Las Vegas, 

for Respondent. 

BEFORE THE COURT EN BANC. 

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OPINION 

By the Court, PICKERING, J.: 

This is an appeal from a district court order setting aside a 

trustee's deed following a homeowners' association (110A) assessment lien 

foreclosure sale. The district court held that NRS 116.3116(2) (2013) 

limited the HOA lien to nine months of common expense assessments and 

that the BOA acted unfairly and oppressively in insisting on more than 

that sum to cancel the sale; that the bid price was grossly inadequate; and 

that the foreclosure sale buyer did not qualify as a bona fide purchaser for 

value. The appellants are the HOA and the lien foreclosure sale buyer 

whose trustee's deed the district court set aside. They argue that NRS 

116.31166 (2013), which says that certain recitals in an HOA trustee's sale 

deed are "conclusive proof of the matters recited," renders such deeds 

unassailable. We disagree and reaffirm that, in an appropriate case, a 

court can grant equitable relief from a defective HOA lien foreclosure sale. 

E.g., Long v. Towne, 98 Nev. 11, 639 P.2d 528 (1982). We conclude, 

though, that the district court erred in limiting the HOA lien amount to 

nine months of common expense assessments and in resolving on 

summary judgment the significant issues of fact surrounding the parties' 

conduct, the HOA lien amount, the foreclosure sale buyer's status, and the 

competing equities in this case. We therefore vacate and remand. 

I. 

The parties to this case are the bank that held the note and 

first deed of trust on the property (respondent New York Community 

Bank, or NYCB), the HOA (appellant Shadow Wood Homeowners 

Association, or Shadow Wood), and the buyer at the HOA lien foreclosure 

sale (appellant Gogo Way Trust). The original homeowner is not a party. 

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She lost the property, a condominium, on May 9, 2011, when NYCB 

foreclosed on its first deed of trust. At the time NYCB foreclosed, the note 

securing its first deed of trust had an outstanding balance of $142,000. 

NYCB acquired the property at foreclosure with a $45,900 credit bid. 

The original homeowner also defaulted on the periodic 

assessments due Shadow Wood ($168.71 per month) for her share of the 

condominium community's budgeted common expenses. Her defaults led 

Shadow Wood, in 2008 and 2009, to file a notice of delinquent assessment 

lien, two notices of default and election to sell, and a notice of sale against 

her and the property. When NYCB foreclosed, it did not pay off any part 

of the original homeowner's delinquent assessment lien. As to first deeds 

of trust like NYCB's, the HOA lien statute, NRS 116.3116 (2013), splits 

the HOA lien into two pieces: a superpriority piece, which survives 

foreclosure of the first deed of trust; and a subpriority piece, which does 

not. See SFR Invs. Pool 1 v. U.S. Bank, N.A., 130 Nev., Adv. Op. 75, 334 

P.3d 408, 410 (2014). When NYCB acquired the property via credit bid, it 

thus took title subject to Shadow Wood's superpriority lien but the 

subpriority piece of the lien was extinguished. 

NYCB not only failed to pay off the superpriority lien, it also 

did not pay the ongoing HOA monthly assessments as they came due. 

This led Shadow Wood, on July 7, 2011, to record a new notice of 

delinquent assessment lien. The new notice listed NYCB as the owner, 

stated that the lien delinquency was $8,238.87 as of June 29, 2011, and 

advised that, "[a] dditional monies shall accrue under this claim at the rate 

of the claimant's regular monthly or special assessments, plus permissible 

late charges, costs of collection and interest, accruing subsequent to the 

date of this notice." Shadow Wood's counsel, Alessi & Koenig, sent a 

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certified letter to NYCB with a copy of the notice of delinquent 

assessment. The letter advised that "the total amount due may differ 

from the amount shown on the enclosed lien" and that: 

Unless you, within thirty days after receipt 

of this notice, dispute the validity of this debt, or 

any portion thereof, our office will assume the debt 

is valid. If you notify our office in writing within 

the thirty-day period that the debt, or any portion 

thereof, is disputed, we will obtain verification of 

the debt and a copy of such verification will be 

mailed to you. 

NYCB did not respond, and on October 13, 2011, Shadow 

Wood engaged the next step of the HOA lien foreclosure process, recording 

a notice of default and election to sell (the NOD). Although NYCB had not 

made any payments to Shadow Wood,' the NOD reduced the stated lien 

delinquency to $6,608.34 as of August 29, 2011. (Mathematics and the 

record suggest, but do not definitively establish, that Shadow Wood 

subtracted the original owner's delinquent monthly assessments to the 

extent they went back further than nine months before the NYCB 

foreclosure sale.) The NOD advised, "You have the right to bring your 

account in good standing by paying all of your past due payments plus 

permitted costs and expenses," which "will increase until your account 

becomes current," and warned that, if not paid, foreclosure sale will follow 

after 90 days. 

'At oral argument, NYCB's counsel stated that the bank "typically" 

would not pay HOA assessments on property acquired by credit bid at 

foreclosure but, rather, would wait until the bank had a purchaser to buy 

the property and pay off the HOA assessment lien out of escrow funds. 

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After receiving the NOD, NYCB sent Alessi & Koenig (the law 

firm who acted as Shadow Wood's collection counsel and whom the NOD 

designated as Shadow Wood's trustee's agent) an email on November 2, 

2011, saying, "In order to pay the dues on this property we will need a 

detailed statement." By December 12, 2011, Alessi & Koenig had not 

responded to NYCB's November 2, 2011, email or its December 2, 2011, 

reforwarded follow-up, so NYCB emailed Shadow Wood's management 

company asking for "a current statement and their W9 so that we can pay 

the dues." NYCB's title company also sent the management company "a 

demand which reflects all funds owed by OUR SELLER ONLY and not 

those funds which might have been owed by the prior owner of the subject 

property." In response, Alessi & Koenig and Shadow Wood's management 

firm sent NYCB various, seemingly conflicting documents, which included 

account history ledgers for the original homeowner and NYCB that listed 

the monthly assessments and late charges, and summaries that broke 

down the fees and costs associated with the current and prior lien 

foreclosure processes, charges not included on the account history ledgers. 

By notice of sale (NOS) dated January 18 and recorded 

January 27, 2012, Shadow Wood scheduled its lien foreclosure sale for 

February 22, 2012. By then, the stated delinquency had increased from 

$6,608.34 as of the NOD date to $8,539.77 as of the NOS date. As NRS 

116.31162(1)(b) (2013) requires, the NOS stated: 

WARNING! A SALE OF YOUR PROPERTY IS 

IMMINENT! UNLESS YOU PAY THE AMOUNT 

SPECIFIED IN THIS NOTICE BEFORE THE 

SALE DATE, YOU COULD LOSE YOUR HOME, 

EVEN IF THE AMOUNT IS IN DISPUTE. 

(Emphasis added.) 

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On January 31, 2012, NYCB sent Shadow Wood a $6,783.16 

check, an amount less than the NOS said was required but which the bank 

later explained it derived from the account history ledgers. Shadow Wood 

rejected the check and sent NYCB breakdowns showing $9,017.39 as the 

current lien amount, consisting of $3,252.39 in unpaid monthly 

assessments from August 9, 2010, through February 29, 2012, plus fees 

and charges for publishing and posting of the notice of trustee's sale, 

recording fees, late fees, title research fees, and the like. Although the 

breakdowns itemize the charges and provide dates, some going back to 

2009 and 2010, before NYCB foreclosed its first deed of trust, they also 

include parentheticals suggesting the same charges were incurred 

multiple times, and thus that the charges, or portions of them, were 

current. 

Shadow Wood's lien foreclosure sale proceeded, as scheduled, 

on February 22, 2012. NYCB did not attend or try to halt the sale, and a 

third-party buyer, appellant Gogo Way, purchased the property for 

$11,018.39 in cash. The trustee's deed to Gogo Way recites: 

Default occurred as set forth in a Notice of Default 

and Election to Sell which was recorded in the 

office of the recorder of said county. All 

requirements of law regarding the mailing of 

copies of notices and the posting and publication of 

the copies of the Notice of Sale have been complied 

with. 

After the sale, NYCB sued Shadow Wood and Gogo Way, 

seeking declaratory relief and to quiet title under NRS 40.010. NYCB's 

first amended complaint alleges that NYCB remained the owner because 

Shadow Wood did not conduct the sale in good faith and the sale price was 

commercially unreasonable. Represented jointly by Alessi & Koenig, 

Shadow Wood and Gogo Way counterclaimed with their own declaratory 

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relief and quiet title claims, in which they alleged that Shadow Wood 

properly foreclosed based on NYCB's failure to pay assessments and 

performed all statutory and contractual obligations in conducting the sale, 

so title vested in Gogo Way. 

After discovery, both sides moved for summary judgment. At 

the district court's suggestion, NYCB supplemented its summary 

judgment motion to argue that Shadow Wood was only entitled to nine 

months' worth of HOA assessments, or $1,519.29 (monthly assessments of 

$16831 multiplied by 9). The district court granted summary judgment 

for NYCB and against Shadow Wood and Gogo Way. It held that, under 

NRS 116.3116(2) (2013), Shadow Wood could only recover $1,519.29, and 

found, "based upon the papers and pleadings submitted. . . that Shadow 

Wood and/or its agents were attempting to profit off of the subject HOA 

foreclosure by including exorbitant fees and costs that could not be sued as 

the basis for an HOA foreclosure sale in this matter." The district court 

deemed Shadow Wood's rejection of NYCB's $6,783.16 check 

"unreasonable and oppressive" and also held that "Gogo Way Trust was 

not a bona fide purchaser at the subject HOA foreclosure sale." On these 

bases, the district court set aside Shadow Wood's sale and declared title 

vested in NYCB. Shadow Wood and Gogo Way appeal. 

A. 

Summary judgment may be granted for or against a party on 

motion therefor "if the pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if any, show that there 

is no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law." NRCP 56(c). That an action 

seeks declaratory or equitable relief does not prevent its adjudication on 

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summary judgment. See NRCP 56(a), (b) (declaratory judgment claims 

may be resolved on summary judgment); 10B Charles Alan Wright et al., 

Federal Practice & Procedure: Civil § 2731 (3d ed. 2014) ("if there are no 

triable fact issues and the court believes equitable relief is warranted, it is 

fully empowered to grant it on a Rule 56 motion"). This does not mean 

"that a court always will grant summary judgment in an action seeking 

equitable relief simply because there is no dispute as to the facts. If relief 

seems inappropriate, or the judge desires a fuller development of the 

circumstances of the case, the judge is free to refuse to grant the motion." 

Id. And even though equitable relief is sought, our review remains de 

novo. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1030 

(2005). Finally, "as is true under Rule 56 generally, if genuine issues of 

fact do exist, summary judgment must be denied in a proceeding for 

equitable relief." 10B Charles Alan Wright et al., supra, § 2731. 

B. 

Nevada has adopted the 1982 Uniform Common Interest 

Ownership Act (UCIOA), codifying it as NRS Chapter 116. See 1991 Nev. 

Stat., ch. 245, § 100, at 570. In doing so, the Legislature also enacted 

unique provisions not contained in the UCIOA setting out the procedures 

for an HOA's nonjudicial foreclosure of delinquent assessment liens. See 

NRS 116.31162-.31168 (2013), discussed in SFR Invs. Pool 1, 130 Nev., 

Adv. Op. 75, 334 P.3d at 411-12. 2Among these provisions are NRS 

2The 2015 Legislature revised Chapter 116 substantially. 2015 Nev. 

Stat., ch. 266. Except where otherwise indicated, the references in this 

opinion to statutes codified in NRS Chapter 116 are to the version of the 

statutes in effect in 2011 and 2012, when the events giving rise to this 

litigation occurred. 

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116.31164(3)(a), which mandates that, after an HOA's nonjudicial 

foreclosure sale, the person who conducted the sale must "fmlake, execute 

and, after payment is made, deliver to the purchaser, or his or her 

successor or assign, a deed without warranty which conveys to the grantee 

all title of the unit's owner to the unit," and its companion, NRS 

116.31166, which states: 

1. The recitals in a deed made pursuant to 

NRS 116.31164 of: 

(a) Default, the mailing of the notice of 

delinquent assessment, and the recording of the 

notice of default and election to sell; 

(b) The elapsing of the 90 days; and 

(c) The giving of notice of sale, 

are conclusive proof of the matters recited. 

2. Such a deed containing those recitals is 

conclusive against the unit's former owner, his or 

her heirs and assigns, and all other persons. . . . 

NRS 116.31166(1)-(2) (2013). 

The Gogo Way trustee's deed contains recitals that NRS 

116.31166 deems "conclusive," to wit: "Default" occurred; and, "All 

requirements of law regarding the mailing of copies of notices and the 

posting and publication of the copies of the Notice of Sale have been 

complied with." Shadow Wood and Gogo Way maintain that, under NRS 

116.31166, recitals such as these bar any post-sale challenge regardless of 

basis, whether it disputes the HOA's compliance with the statutory 

default, notice, and timing requirements or, as here, seeks to set aside the 

sale for equity-based reasons. If true, this interpretation would call into 

question this court's statement in Long v. Towne, that a common-interest 

community association's nonjudicial foreclosure sale may be set aside, just 

as a power-of-sale foreclosure sale may be set aside, upon a showing of 

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grossly inadequate price plus "fraud, unfairness, or oppression." 98 Nev. 

at 13, 639 P.2d at 530 (citing Golden v. Tomiyasu, 79 Nev. 503, 514, 387 

P.2d 989, 995 (1963) (stating that, while a power-of-sale foreclosure may 

not be set aside for mere inadequacy of price, it may be if the price is 

grossly inadequate and there is "in addition proof of some element of 

fraud, unfairness, or oppression as accounts for and brings about the 

inadequacy of price" (internal quotation omitted))). 

As a textual matter, the deed recitals to which NRS 116.31166 

accords conclusive effect do not relate to the deficiencies NYCB alleges. 

The "conclusive" recitals concern default, notice, and publication of the 

NOS, all statutory prerequisites to a valid HOA lien foreclosure sale as 

stated in NRS 116.31162 through NRS 116.31164, the sections that 

immediately precede and give context to NRS 116.31166. Cf. Bourne 

Valley Court Tr. v. Wells Fargo Bank, N.A., 80 F. Supp. 3d 1131, 1135 (D. 

Nev. 2015) (holding that under NRS 116.31166, when a foreclosure deed 

recited that there was a default, the proper notices were given, the 

appropriate amount of time elapsed between notice of default and sale, 

and the notice of sale was given, it was "'conclusive proof' that the 

required statutory notices were provided"). But NYCB does not dispute 

that it defaulted, at least as to the superpriority piece of the original 

homeowner's lien, or that Shadow Wood complied with the notice and 

publication requirements of NRS 116.31162 through NRS 116.31164. 

NYCB's claim is that Shadow Wood acted unfairly, oppressively, perhaps 

even fraudulently by overstating its lien delinquency, rejecting a valid 

tender of the amount due, and selling the property at foreclosure for a 

grossly inadequate price. And, while it is possible to read a conclusive 

recital statute like NRS 116.31166 as conclusively establishing a default 

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justifying foreclosure when, in fact, no default occurred, such a reading 

would be "breathtakingly broad" and "is probably legislatively 

unintended." 1 Grant S. Nelson, Dale A. Whitman, Ann M. Burkhart & 

R. Wilson Freyermuth, Real Estate Finance Law § 7:22 (6th ed. 2014). We 

decline to give the default recital such a broad and unprecedented reading, 

particularly since Shadow Wood and Gogo Way cite no germane authority 

in its support. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 

n.38, 130 P.3d 1280, 1288 n.38 (2006) (this court will not consider 

arguments not cogently stated or supported with relevant authority). 

History and basic rules of statutory interpretation confirm our 

view that courts retain the power to grant equitable relief from a defective 

foreclosure sale when appropriate despite NRS 116.31166. At common 

law, courts possessed inherent equitable power to consider quiet title 

actions, a power that required no statutory authority. See MacDonald v. 

Krause, 77 Nev. 312, 317, 362 P.2d 724, 727 (1961) ("It has always been 

recognized that equity has inherent original jurisdiction of bills to quiet 

title to property and to remove a cloud from the title."); Robinson v. Kind, 

23 Nev. 330, 47 P. 977, 978 (1897) (recognizing the "well-settled rules that 

an action to quiet title is a suit in equity") (internal quotation omitted). 

Thus, in Low v. Staples, 2 Nev. 209 (1866), this court determined that, 

notwithstanding the then-existing statutory requirement that a quiet title 

plaintiff must be in possession of the property, see Compiled Laws State of 

Nev., tit. VIII, ch. 3, § 256, at 372 (1873), a plaintiff not in possession still 

may seek to .quiet title by invoking the court's inherent equitable 

jurisdiction to settle title disputes. Low, 2 Nev. at 211-13. In so holding, 

the court explained: 

The plaintiff seeks a remedy which courts of 

equity have always granted independent of any 

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statute, where a proper case was made out. The 

relief sought is a decree to compel certain persons 

to execute deeds of conveyance to the plaintiff, and 

to remove a cloud from his title. That it requires 

no statutory provisions to enable a court of equity 

to award relief in such cases, there can be no 

doubt. 

Id. at 211. 

In 1912, the Legislature adopted statutes to govern quiet title 

actions that largely stand today. Compare Revised Laws of Nev., ch. 62, 

§§ 5514-5526 (1912), with NRS 40.010-.130. And in Clay v. Scheeline 

Banking & Trust Co., the court recognized that the statute authorizing a 

person to bring a quiet title claim against another who claims adversely, 

now numbered NRS 40.010, essentially codified the court's existing equity 

jurisprudence, stating that "there is practically no difference in the nature 

of the action under our statute and as it exists independent of statute." 40 

Nev. 9, 16-17, 159 P. 1081, 1082 (1916). So, a person who brings a quiet 

title action may, consistent with NRS Chapter 40 and our long-standing 

equitable jurisprudence, invoke the court's inherent equitable powers to 

resolve the competing claims to such title. 

The Legislature borrowed NRS 116.31166's conclusive recital 

language from NRS 107.030(8), which it enacted in 1927 to govern powerof-sale foreclosures. A.B. 131, 33d Leg. (Nev. 1927); 1927 Nev. Stat., ch. 

173, § 2, at 295; Hearing on A.B. 221 Before the Senate Judiciary Comm., 

66th Leg. (Nev., May 23, 1991) & Exhibit C (conversion table matching up 

each component of the Nevada bill with its UCIOA counterpart providing 

that the section that became NRS 116.31166 had no UCIOA equivalent, 

but was explained as: "Deed recitals in assessment lien foreclosure sale. 

See NRS 107.030(8)."). The conclusive recital provisions in NRS 

107.030(8) have never been argued to carry the preemptive effect• that 

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Shadow Wood and Gogo Way attribute to NRS 116.31166. While not 

directly addressing the preemption argument Shadow Wood and Gogo 

Way make as to NRS 116.31166, our post-NRS 107.030(8) cases reaffirm 

that courts retain the power, in an appropriate case, to set aside a 

defective foreclosure sale on equitable grounds. See Golden v. Tomiyasu, 

79 Nev. at 514, 387 P.2d at 995 (adopting the California rule that 

"inadequacy of price, however gross, is not in itself a sufficient ground for 

setting aside a trustee's sale legally made; there must be in addition proof 

of some element of fraud, unfairness, or oppression as accounts for and 

brings about the inadequacy of price" (quoting Oiler v. Sonoma Cty. Land 

Title Co., 290 P.2d 880, 882 (Cal. Ct. App. 1955))); McLaughlin v. Mitt. 

Bldg. & Loan Ass'n, 57 Nev. 181, 191, 60 P.2d 272, 276 (1936) (noting that, 

in the context of an action to recover possession of a property after a 

trustee sale, "[h]ad the conduct of the trustee and respondent, in 

connection with the sale, been accompanied by any actual fraud, deceit, or 

trickery, a more serious question would be presented"); see also Nev. Land 

& Mortg. Co. v. Hidden Wells Ranch, Inc., 83 Nev. 501, 504, 435 P.2d 198, 

200 (1967) ("In the proper case, the trial court may set aside a trustee's 

sale upon the grounds of fraud or unfairness."). And, cases elsewhere to 

have addressed comparable conclusive- or presumptive-effect recital 

statutes confirm that such recitals do not defeat equitable relief in a 

proper case; rather, such recitals are "conclusive, in the absence of grounds 

for equitable relief" Holland v. Pendleton Mortg. Co., 143 P.2d 493, 496 

(Cal. Ct. App. 1943) (emphasis added); see Bechtel v. Wilson, 63 P.2d 1170, 

1172 (Cal. Ct. App. 1936) (distinguishing between a challenge to the 

sufficiency of pre-sale notice, which was precluded by the conclusive 

recitals in the deed, and an equity-based challenge based upon the alleged 

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unfairness of the sale); compare 1 Grant S. Nelson, Real Estate Finance 

Law, supra, § 7:23, at 986-87 ("After a defective power of sale foreclosure 

has been consummated, mortgagors and junior lienholders in virtually 

every state have an equitable action to set aside the sale.") (footnotes 

omitted), with id. § 7:22, at 980-82 (noting that "[m] any states have 

attempted to enhance the stability of power of sale foreclosure titles by 

enacting a variety of presumptive statutes"), and 6 Baxter Dunaway, Law 

of Distressed Real Estate, § 64:161 (2015) (noting that a trustee's deed 

recital can be overcome on a showing of actual fraud). 

The Legislature is "presumed not to intend to overturn longestablished principles of law" when enacting a statute. Hardy Cos., Inc. v. 

SNMARK, LLC, 126 Nev. 528, 537, 245 P.3d 1149, 1155-56 (2010) 

(internal quotation omitted). Also, this court strictly construes statutes in 

derogation of the common law, Holliday v. McMullen, 104 Nev. 294, 296, 

756 P.2d 1179, 1180 (1988), and has been instructed to apply "principles of 

law and equity, including. . . the law of real property," to MRS Chapter 

116. NRS 116.1108. The long-standing and broad inherent power of a 

court to sit in equity and quiet title, including setting aside a foreclosure 

sale if the circumstances support such action, the fact that the recitals 

made conclusive by operation of MRS 116.31166 implicate compliance only 

with the statutory prerequisites to foreclosure, and the foreign precedent 

cited under which equitable relief may still be available in the face of 

conclusive recitals, at least in cases involving fraud, lead us to the 

conclusion that the Legislature, through NRS 116.31166's enactment, did 

not eliminate the equitable authority of the courts to consider quiet title 

actions when an HOA's foreclosure deed contains conclusive recitals. We 

therefore reject Shadow Wood's and Gogo Way's contention that MRS 

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116.31166 defeats, as a matter of law, NYCB's action to set aside the 

trustee's deed and to quiet title in itself. 

C. 

The question remains whether NYCB demonstrated sufficient 

grounds to justify the district court in setting aside Shadow Wood's 

foreclosure sale on NYCB's motion for summary judgment. Breliant v. 

Preferred Equities Corp., 112 Nev. 663, 669, 918 P.2d 314, 318 (1996) 

(stating the burden of proof rests with the party seeking to quiet title in its 

favor). As discussed above, demonstrating that an association sold a 

property at its foreclosure sale for an inadequate price is not enough to set 

aside that sale; there must also be a showing of fraud, unfairness, or 

oppression. Long, 98 Nev. at 13, 639 P.2d at 530. 

NYCB failed to establish that the foreclosure sale price was 

grossly inadequate as a matter of law. NYCB compares Gogo Way's 

purchase price, $11,018.39, to the amount NYCB bought the property for 

at its foreclosure sale, $45,900.00. Even using NYCB's purchase price as a 

comparator, and adding to that sum the $1,519.29 NYCB admits remained 

due on the superpriority lien following NYCB's foreclosure sale, Gogo 

Way's purchase price reflects 23 percent of that amount and is therefore 

not obviously inadequate. See Golden, 79 Nev. at 511, 387 P.2d at 993 

(noting that even where a property was "sold for a smaller proportion of its 

value than 28.5%," it did not justify setting aside the sale); see also 

Restatement (Third) of Prop.: Mortgages § 8.3 ant. b (1997) (stating that 

while "[dross inadequacy cannot be precisely defined in terms of a specific 

percentage of fair market value [, denerally . a court is warranted in 

invalidating a sale where the price is less than 20 percent of fair market 

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value and, absent other foreclosure defects, is usually not warranted in 

invalidating a sale that yields in excess of that amount"). 3 

Other than the sale price, NYCB focuses on the actions of 

Shadow Wood and its counsel, Alessi & Koenig, which NYCB submits 

amounted to fraud, unfairness, or oppression that, combined with the 

inadequate price, justify setting aside the sale. NYCB focuses on Shadow 

Wood's alleged overstatement of its lien amount. The district held that 

Shadow Wood was limited to the superpriority lien that survived its first 

deed of trust foreclosure sale, which NYCB asserts was capped at 

$1,519.29, or nine months of $168.71 monthly assessments. NYCB 

persuaded the district court to find, as a matter of law, that Shadow 

Wood's actions in trying to collect more than $1,519.29 from NYCB were 

"unreasonable and oppressive" and justified the district court in setting 

aside the sale. 

NYCB's argument does not account for the fact that, after 

foreclosing its first deed of trust, NYCB became the owner of the property. 

Its foreclosure sale extinguished Shadow Wood's subpriority lien, 

eliminating the original owner's monthly assessment arrearages going 

back further than the nine months accorded superpriority status by NRS 

116.3116(2) (2013). But NYCB's foreclosure did not absolve NYCB of its 

3Although not argued by NYCB, the record includes an 

unauthenticated appraisal of the property setting its value at $53,000. 

The $11,018.39 sale price is slightly more than 20 percent of that 

estimate, so it does not affect the analysis in the text. See also 

Restatement (Third) of Prop.: Mortgages § 8.3 cmt. b (stating that "courts 

can properly take into account the fact that the value shown on a recent 

appraisal is not necessarily the same as the property's fair market value 

on the foreclosure sale date"). 

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obligation, as the new owner, to pay the monthly HOA assessments as 

they came due, which it failed to do. The lien delinquency breakdowns 

that Shadow Wood sent NYCB charged NYCB with monthly assessments 

from August 9, 2010, through February 29, 2012. NYCB foreclosed its 

deed of trust on May 9,2011, so Shadow Wood went back nine months, to 

August 9, 2010, to calculate NYCB's superpriority monthly assessment 

delinquency of $1,519.29. To this sum, though, Shadow Wood properly 

added the monthly assessments NYCB owed as owner on an ongoing 

basis, from June 9, 2011, projected through February 2012, when the 

Shadow Wood foreclosure sale occurred, which effectively doubles the 

monthly assessment delinquency. In holding that Shadow Wood acted 

unfairly and oppressively in seeking to collect more than $1,519.29, the 

district court erred, since it excluded the ongoing monthly assessments 

due from NYCB as owner. 4 

NYCB's analysis also does not adequately defend its complete 

exclusion of all fees and costs associated with Shadow Wood's foreclosure 

of its lien, even fees and costs incurred after NYCB became the owner of 

the property. The omission is understandable, given the district court's 

holding that Shadow Wood was limited as a matter of law to $1,519.29. 

The question of whether and, if so, to what extent costs and fees are 

recoverable in the context of an HOA superpriority lien is open, 

particularly as to foreclosures that pre-date the 2015 amendments to NRS 

4The Shadow Wood breakdown sets out $3,252.39 as the monthly 

assessment delinquency from August 9, 2010, through February 29, 2012. 

The record does not explain the math that produced this number. 

Nineteen months of assessments, assuming the split month is included, 

works out to $3,205.49. 

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Chapter 116. But here, because the parties did not develop in district 

court what the fees and costs represent, when they were incurred, their 

(un)reasonableness, and the impact, if any, of Shadow Wood's covenants, 

conditions and restrictions (CC&Rs) on their allowance, 5we leave this 

issue to further development in the district court on remand. 

The district court erred in simply stopping at its conclusion 

that Shadow Wood was entitled only to nine months' worth of 

assessments. None of the parties, most importantly NYCB, whom the 

district court found carried its burden to show no genuine issues of 

material fact existed and that it therefore was entitled to judgment as a 

matter of law, point to uncontroverted evidence in the record to show 

exactly what Shadow Wood was entitled to post-NYCB's foreclosure sale 

and up until the association foreclosure sale, leaving that amount 

surrounded by issues of fact and not a proper basis upon which to enter 

summary judgment. Anderson v. Heart Fed. Say. & Loan Ass'n, 256 Cal. 

Rptr. 180, 189 (Ct. App. 1989) (reversing grant of summary judgment 

where there remained triable issues of fact as to the amount actually owed 

to the trustee and thus as to whether the tender was sufficient). 

As further evidence of the oppression and unfairness, NYCB 

points to the inconsistent lien amounts provided by Shadow Wood, 

5The record on appeal does not include the complete CC&Rs. 

Allegedly, section 4.01 of the CC&Rs reads as follows: 

The annual and special assessments, together 

with interest, costs and reasonable attorney's fees, 

shall be a charge on the Condominium Unit and 

shall be a continuing lien upon the Condominium 

Unit against which such assessment is made. 

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through Alessi & Koenig, from the time it filed the 2011 notice of 

delinquent assessment to the time it actually sold the property to Gogo 

Way. 6The recorded instruments and communications between the parties 

indeed demonstrate that Shadow Wood and its counsel provided varying 

lien amounts to NYCB throughout the foreclosure process, conduct that, if 

it rose to the level of misrepresentations and nondisclosures that indeed 

prevented NYCB's ability to cure the default, might support setting aside 

the sale. CI In re Tome, 113 B.R. 626, 636 (Bankr. C.D. Cal. 1990) 

(holding that where the security interest holder had not notified the 

borrower that it had purchased the interest, it was bound by the previous 

holder's provision of inaccurate information to the borrower concerning the 

amount due to halt the foreclosure sale and that such inaccurate 

information supported setting aside the sale). 

Against these inconsistencies, however, must be weighed 

NYCB's (in)actions. The NOS was recorded on January 27, 2012, and the 

sale did not occur until February 22, 2012. NYCB knew the sale had been 

scheduled and that it disputed the lien amount, yet it did not attend the 

sale, request arbitration to determine the amount owed, or seek to enjoin 

the sale pending judicial determination of the amount owed. The NOS 

included a warning as required by NRS 116.311635(3)(b): 

WARNING! A SALE OF YOUR PROPERTY IS 

IMMINENT! UNLESS YOU PAY THE AMOUNT 

SPECIFIED IN THIS NOTICE BEFORE THE 

SALE DATE, YOU COULD LOSE YOUR HOME, 

6NYCB does not argue that it invoked NRS 116.3116(8) (2013), so 

our analysis does not take this statute into consideration. 

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EVEN IF THE AMOUNT IS IN DISPUTE. YOU 

MUST ACT BEFORE THE SALE DATE. 

(Emphasis added.) In addition to the required warning, Shadow Wood's 

NOS listed the lien amount as $8,539.77. For whatever reason, NYCB 

tendered only $6,783.16. 

Taken together, the record demonstrates too many unresolved 

issues of material fact for the district court to assess the competing 

equities in this case as between Shadow Wood and NYCB on the summary 

judgment record assembled. 

D. 

There also remain issues surrounding Gogo Way's putative 

status as a bona fide purchaser and its bearing on the equitable relief 

requested. NYCB argues that Gogo Way waived its presently made bona 

fide purchaser argument because it relied below on NRS Chapter 645F's 

bona fide purchaser provisions, rather than the common-law-based 

argument it makes on appeal. See Schuck v. Signature Flight Support of 

Nev., Inc., 126 Nev. 434, 436, 245 P.3d 542, 544 (2010) (stating points not 

urged in the trial court generally are deemed waived on appeal). 

When sitting in equity, however, courts must consider the 

entirety of thefl circumstances that bear upon the equities. See, e.g., In re 

Petition of Nelson, 495 N.W.2d 200, 203 (Minn. 1993) (considering whether 

the totality of the circumstances supported granting equitable relief to set 

aside a sale when the former owner had failed to act during the 

redemption period); see also La Quinta Worldwide LLC v. Q.R.T.M., S.A. 

de C.V., 762 F.3d 867, 880 (9th Cir. 2014) (remanding for reconsideration 

of a district court's decision granting a permanent injunction because the 

district court's analysis did not discuss a fact relevant to the weighing of 

the equities); Murray v. Cadle Co., 257 S.W.3d 291, 301 (Tex. App. 2008) 

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(considering the totality of the circumstances to determine whether to 

uphold the lower court's equitable subrogation decision); Savage v. Walker, 

969 A.2d 121, 125 (Vt. 2009) (noting trial courts should consider the 

totality of the circumstances to determine if a constructive trust, an 

equitable remedy, was warranted). This includes considering the status 

and actions of all parties involved, including whether an innocent party 

may be harmed by granting the desired relief.' Smith v. United States, 

373 F.2d 419, 424 (4th Cir. 1966) ("Equitable relief will not be granted to 

the possible detriment of innocent third parties."); see also In re Vlasek, 

325 F.3d 955, 963 (7th Cir. 2003) ("Mt is an age-old principle that in 

formulating equitable relief a court must consider the effects of the relief 

on innocent third parties."); Riganti v. McElhinney, 56 Cal. Rptr. 195, 199 

(Ct. App. 1967) ("[E]quitable relief should not be granted where it would 

work a gross injustice upon innocent third parties."). 

Here, Gogo Way was a party before the district court in this 

quiet title action, claiming a right to the property as the foreclosure 

purchaser to whom the deed had been delivered. So, its status as a 

potentially innocent third party that would be harmed by setting aside the 

7Consideration of harm to potentially innocent third parties is 

especially pertinent here where NYCB did not use the legal remedies 

available to it to prevent the property from being sold to a third party, 

such as by seeking a temporary restraining order and preliminary 

injunction and filing a lis pendens on the property. See NRS 14.010; NRS 

40.060. Cf. Barkley's Appeal. Bentley's Estate, 2 Monag. 274, 277 (Pa. 

1888) ("In the case before us, we can see no way of giving the petitioner 

the equitable relief she asks without doing great injustice to other 

innocent parties who would not have been in a position to be injured by 

such a decree as she asks if she had applied for relief at an earlier day."). 

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foreclosure sale and placing title back with NYCB was in issue. In fact, 

the district court's determination that Gogo Way was not a bona fide 

purchaser allowed it to set aside the sale and quiet title in NYCB's favor 

without taking into account the harm that would cause Gogo Way, as the 

order reflects no further discussion of Gogo Way beyond that summary 

determination. Therefore, we find the issue of whether Gogo Way was an 

innocent purchaser who took the property without any knowledge of the 

pre-sale dispute between NYCB and Shadow Wood was sufficiently in 

controversy before the district court, and indeed formed the basis of a 

major aspect of the district court's decision, such that the issue was not 

waived. 

A subsequent purchaser is bona fide under common-law 

principles if it takes the property "for a valuable consideration and 

without notice of the prior equity, and without notice of facts which upon 

diligent inquiry would be indicated and from which notice would be 

imputed to him, if he failed to make such inquiry." Bailey v. Butner, 64 

Nev. 1, 19, 176 P.2d 226, 234 (1947) (emphasis omitted); see also Moore v. 

De Bernardi, 47 Nev. 33, 54, 220 P. 544, 547 (1923) ("The decisions are 

uniform that the bona fide purchaser of a legal title is not affected by any 

latent equity founded either on a trust, [e]ncumbrance, or otherwise, of 

which he has no notice, actual or constructive."). Although, as mentioned, 

NYCB might believe that Gogo Way purchased the property for an amount 

lower than the property's actual worth, that Gogo Way paid "valuable 

consideration" cannot be contested. Fair v. Howard, 6 Nev. 304, 308 

(1871) ("The question is not whether the consideration is adequate, but 

whether it is valuable."); see also Poole v. Watts, 139 Wash. App. 1018 

(2007) (unpublished disposition) (stating that the fact that the foreclosure 

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sale purchaser purchased the property for a "low price" did not in itself put 

the purchaser on notice that anything was amiss with the sale). 

As to notice, NYCB submits that "the simple fact that the 

HOA trustee is attempting to sell the property, and divest the title owner 

of its interest, is enough to impart constructive notice onto the purchaser 

that there may be an adverse claim to title." Essentially, then, NYCB 

would have this court hold that a purchaser at a foreclosure sale can never 

be bona fide because there is always the possibility that the former owner 

will challenge the sale post hoc. The law does not support this contention. 

When a trustee forecloses on and sells a property pursuant to 

a power of sale granted in a deed of trust, it terminates the owner's legal 

interest in the property. Charmicor, Inc. v. Bradshaw Fin. Co., 92 Nev. 

310, 313, 550 P.2d 413, 415 (1976). This principle equally applies in the 

HOA foreclosure context because NRS Chapter 116 grants associations the 

authority to foreclose on their liens by selling the property and thus divest 

the owner of title. See NRS 116.31162(1) (providing that "the association 

may foreclose its lien by sale" upon compliance with the statutory notice 

and timing rules); NRS 116.31164(3)(a) (stating the association's 

foreclosure sale deed "conveys to the grantee all title of the unit's owner to 

the unit") And if the association forecloses on its superpriority lien 

portion, the sale also would extinguish other subordinate interests in the 

property. SFR Invs., 334 P.3d at 412-13. So, when an association's 

foreclosure sale complies with the statutory foreclosure rules, as evidenced 

by the recorded notices, such as is the case here, and without any facts to 

indicate the contrary, the purchaser would have only "notice" that the 

former owner had the ability to raise an equitably based post-sale 

challenge, the basis of which is unknown to that purchaser. 

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That NYCB retained the ability to bring an equitable claim to 

challenge Shadow Wood's foreclosure sale is not enough in itself to 

demonstrate that Gogo Way took the property with notice of any potential 

future dispute as to title. And NYCB points to no other evidence 

indicating that Gogo Way had notice before it purchased the property, 

either actual, constructive, or inquiry, as to NYCB's attempts to pay the 

lien and prevent the sale, or that Gogo Way knew or should have known 

that Shadow Wood claimed more in its lien than it actually was owed, 

especially where the record prevents us from determining whether that is 

true. Lennartz v. Quilty, 60 N.E. 913, 914 (Ill. 1901) (finding a purchaser 

for value protected under the common law who took the property without 

record or other notice of an infirmity with the discharge of a previous lien 

on the property). Because the evidence does not show Gogo Way had any 

notice of the pre-sale dispute between NYCB and Shadow Wood, the 

potential harm to Gogo Way must be taken into account and further 

defeats NYCB's entitlement to judgment as a matter of law. 

"Where the complaining party has access to all the facts 

surrounding the questioned transaction and merely makes a mistake as to 

the legal consequences of his act, equity should normally not interfere, 

especially where the rights of third parties might be prejudiced thereby." 

Nussbaumer v. Superior Court in & for Yuma Cty., 489 P.2d 843, 846 

(Ariz. 1971). NYCB did not tender the amount provided in the notice of 

sale, as statute and the notice itself instructed, and did not meet its 

burden to show that no genuine issues of material fact existed regarding 

the proper amount of Shadow Wood's lien or Gogo Way's bona fide status. 

Though perhaps NYCB could prove its claim at trial by presenting 

sufficient evidence to demonstrate that the equities swayed so far in its 

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Patrag-uirre 

C.J. 

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Cherry 

Saitta 

J. 

Gi ons 

25 

favor as to support setting aside Shadow Wood's foreclosure sale, NYCB 

did not prove that it was entitled to summary judgment on the matter. 

Chapman v. Deutsche Bank Nat'l Tr. Co., 129 Nev., Adv. Op. 34, 302 P.3d 

1103, 1106 (2013). 

We therefore vacate the district court's judgment and remand. 

J. 

We concur: 

-10-4 cies-tin , J. 

Hardesty