Opinion
No. 64955
12-21-2016
STONE HOLLOW AVENUE TRUST, Appellant, v. BANK OF AMERICA, NATIONAL ASSOCIATION, Respondent.
Law Offices of Michael F. Bohn, Ltd. Greene Infuso, LLP Akerman LLP/Las Vegas Kim Gilbert Ebron The Wright Law Group
Law Offices of Michael F. Bohn, Ltd.
Greene Infuso, LLP
Akerman LLP/Las Vegas
Kim Gilbert Ebron
The Wright Law Group
ORDER GRANTING EN BANC RECONSIDERATION, VACATING PRIOR ORDER, AND VACATING AND REMANDING
Having considered appellant's petition, respondent's answer, and SFR Investments' amicus brief, we conclude that en banc reconsideration is warranted. In particular, we conclude that appellant sufficiently challenged in district court whether respondent introduced evidence to establish a legally adequate tender. Consequently, the district court erred in determining as a matter of law that respondent made a legally adequate tender, thereby making summary judgment in favor of respondent improper. See Wood v. Safeway, Inc. , 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005) (recognizing that summary judgment is proper only when the movant is entitled to a judgment as a matter of law).
Based on the record currently before this court, we conclude unresolved question(s) of fact remain, requiring reversal and remand for further proceedings. NRAP 40A. Accordingly, appellant's petition for en banc reconsideration is granted. We hereby vacate this court's August 11, 2016, order and in its place enter this order vacating the district court's summary judgment and remanding this matter to the district court for further proceedings.
NV Eagles, LLC has filed a motion to file an amicus brief in support of appellant. That motion is denied. NRAP 29(f).
The Honorable Lidia S. Stiglich, Justice, did not participate in the decision of this matter.
PICKERING, J. dissenting:
I dissent from the foregoing order. Appellant's petition for en banc reconsideration does not make any argument regarding the adequacy of respondent's tender, and any purported questions of fact with respect to that issue are therefore not a proper basis upon which to grant the petition. Rather, the sole issue appellant raises in support of its petition is whether appellant was a bona fide purchaser. Under the prevailing view, however, a tender of the lien amount invalidates a foreclosure sale to the extent that the sale purports to extinguish the tenderer's interest in the property. See 1 Grant S. Nelson, Dale A. Whitman, Ann M. Burkhart & R. Wilson Freyermuth, Real Estate Finance Law § 7:21 (6th ed. 2014). Because appellant's putative bona fide purchaser status is irrelevant under this prevailing view, and appellant does not cite or develop legal or factual arguments that persuade me a contrary rule should obtain, en banc reconsideration of this court's August 11, 2016, order is not warranted. Accordingly, I respectfully dissent from the court's order granting en banc reconsideration.
Appellant overreads Shadow Wood Homeowners Ass'n, Inc. v. New York Community Bancorp, Inc., 132 Nev., Adv. Op. 5, 366 P.3d 1105 (2016), and ignores the fact that, in Shadow Wood, the lien amount and tender sufficiency were both disputed, a dispute further complicated by the fact that the first deed of trust holder in Shadow Wood foreclosed its deed of trust and became the record owner of the property before the HOA foreclosure occurred.
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