U.S. Bank Nat'L Ass'N v. Sfr Invs. Pool 1, Llc ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
U.S. BANK NATIONAL ASSOCIATION No. 79235
AS TRUSTEE FOR MERRILL LYNCH
MORTGAGE INVESTORS TRUST,
MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES 2005-A8, FILED
Appellant,
vs. FEB 1 8 2022
SFR INVESTMENTS POOL 1, LLC, A ELIZABETH A. BROWN
CLERK OFAUPREVE COURT
NEVADA LIMITED LIABILITY BY S
DERRY CŒRK
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.2 As 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.
3 The 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.5 However, 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.").
3
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
Parraguirre
J.
Hardesty
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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