IN THE SUPREME COURT OF THE STATE OF NEVADA 

No. 79235 

FILED 

FEB 1 8 2022 

ELIZABETH A. BROWN 

CLERK OFAUPREVE COURT 

BYS 

DERRY CŒRK 

U.S. BANK NATIONAL ASSOCIATION 

AS TRUSTEE FOR MERRILL LYNCH 

MORTGAGE INVESTORS TRUST, 

MORTGAGE LOAN ASSET-BACKED 

CERTIFICATES, SERIES 2005-A8, 

Appellant, 

vs. 

SFR INVESTMENTS POOL 1, LLC, A 

NEVADA LIMITED LIABILITY 

COMPANY, 

Res • ondent. 

ORDER OF AFFIRMANCE 

This is an appeal from a district court judgment following a 

bench trial in an action to quiet title. Eighth Judicial District Court, Clark 

County; Joanna Kishner, Judge. We review the district court's factual 

findings for substantial evidence and its legal conclusions de novo, Weddell 

v. H20, Inc., 128 Nev. 94, 101, 271 P.3d 743, 748 (2012), and affirm.' 

The district court found that appellant failed to establish that 

its predecessor (via the predecessor's agent, Miles Bauer) made a 

superpriority tender because Miles Bauer did not deliver the check to the 

HONs agent (A&K). Consequently, the district court determined that the 

HONs foreclosure sale extinguished the first deed of trust.2As support for 

'Pursuant to NRAP 34(f)(1), we have determined that oral argument 

is not warranted in this appeal. 

2The district court also dismissed appellant's claims for lack of subject 

matter jurisdiction, finding that appellant lacked standing. We question 

how the district court could contemporaneously dismiss appellant's claims 

and rule on their merits (or rule on the merits of respondent's counterclaims 

if they were asserted against the wrong entity), but neither appellant nor 

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its finding that Miles Bauer did not deliver the check, the district court 

relied upon the following evidence and testimony: (1) former Miles Bauer 

employee Rock Jung and former A&K employee David Alessi both testified 

that it was Miles Bauer's practice to deliver its checks and accompanying 

letter via runner, and in this case, appellant did not produce a run slip; (2) 

Mr. Alessi testified that it was A&K's practice to keep a copy of the letters 

accompanying Miles Bauer's checks in A&K's file or to note receipt of such 

letters in a status report, and in this case, A&Ks file did not contain a copy 

of the letter or a note of receipt in its status report3; (3) A&K's status report 

included two payoff requests from Miles Bauer after Miles Bauer had 

purportedly delivered the at-issue check, which would not have made sense 

if Miles Bauer had delivered the at-issue check and effectuated a 

superpriority tender; and (4) the loan servicer for appellant's predecessor 

inquired about excess proceeds following the HOA's foreclosure sale, to 

which appellant's predecessor would not have been entitled if a 

superpriority tender had been made. 

We conclude that this evidence constituted a reasonable basis 

to support the district court's finding that Miles Bauer did not deliver the 

respondent appear to take issue with this potential discrepancy. Relatedly, 

in light of our resolution of this appeal, we need not address the parties' 

arguments regarding the statute of limitations or the district court's 

exclusion of evidence relating to the amount of the HOA's superpriority lien. 

3The district court supported these first two findings with NRS 

51.145, which provides that "[e]vidence that a matter is not included in 

the . . . records . . . of a regularly conducted activity" can be used "to prove 

the nonoccurrence or nonexistence of the matter, if the matter was of a kind 

which . . . was regularly made and preserved." 

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check and that no superpriority tender was made.4 See Weddell, 128 Nev. 

at 101, 271 P.3d at 748 ("Substantial evidence is evidence that a reasonable 

mind might accept as adequate to support a conclusion."). We recognize 

appellant's reliance on (1) Mr. Jung's testimony regarding his pattern and 

practice regarding the delivery of checks and accompanying letters, (2) Mr. 

Alessi's testimony that A&K did not always follow its practice of keeping 

copies of the Miles Bauer letters or noting their receipt in a status report; 

and (3) the possibility that Miles Bauer may have tried to make a second 

superpriority tender.5However, we are not persuaded that this testimony 

and proffered inference renders the district court's finding of non-delivery 

clearly erroneous. Id. ("The district court's factual findings . . . are given 

deference and will be upheld if not clearly erroneous and if supported by 

substantial evidence." (quoting Ogawa v. Ogawa, 125 Nev. 660, 668, 221 

P.33 699, 704 (2009))). 

As substantial evidence supports the district court's finding 

that Miles Bauer did not deliver the check to A&K, the district court 

4Appellant contends that delivering the check was unnecessary to 

effectuate a tender. This contention defies common sense and is 

unsupported by on-point authority. Cf. Edwards v. Emperor's Garden Rest., 

122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (observing that it 

is an appellant's responsibility to present cogent arguments supported by 

salient authority). 

5Appellant also contends that Miles Bauer's computer records contain 

an entry showing that A&K had returned the check, with the implication 

being it was delivered. However, we are not persuaded that the district 

court abused its discretion in excluding this evidence due to appellant's 

failure to comply with its NRCP 16.1 obligations. MC. Multi-Fam. Dev., 

L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008) 

(We review a district court's decision to admit or exclude evidence for abuse 

of discretion, and we will not interfere with the district court's exercise of 

its discretion absent a showing of palpable abuse."). 

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correctly concluded that no superpriority tender had been made and that 

the HOA's foreclosure sale extinguished the first deed of trust.6 

Accordingly, we 

ORDER the judgment of the district court AFFIRMED.7 

Hardesty 

Parraguirre 

J. 

cc: Hon. Joanna Kishner, District Judge 

Stephen E. Haberfeld, Settlement Judge 

Wright, Finlay & Zak, LLP/Las Vegas 

Hanks Law Group 

Eighth District Court Clerk 

°We decline to consider appellant's argument that tender should have 

been excitsed for futility under 7510 Perlct Del Mar Avenue Trust v. Bank of 

America, N.A., 136 Nev. 62, 458 P.3d 348 (2020), as appellant did not raise 

an excused-for-futility argument below. Old Aztec Mine, Inc. v. Brown, 97 

Nev. 49, 52, 623 P.2d 981, 983 (1981). 

'The Honorable Mark Gibbons, Senior Justice, participated in the 

decision Of this matter under a general order of assignment. 

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