U.S. BANK N.A. v. THUNDER PROPERTIES, INC. (NRAP 5) , 2022 NV 3 ( 2022 )

138 Nev., Advance Opinion 5
IN THE SUPREME COURT OF THE STATE OF NEVADA
U.S. BANK, N.A., AS TRUSTEE FOR No. 81129
THE SPECIALTY UNDERWRITING
AND RESIDENTIAL FINANCE TRUST
MORTGAGE LOAN ASSET-BACKED
CERTIFICATES SERIES 2006-BC4,
Appellant, F[ILE,
vs.
THUNDER PROPERTIES, INC.; AND FEB 0 3 2022
WESTLAND REAL ESTATE EL5f9-1Air0WN /
PFi E4..2:225....
DEVELOPMENT AND INVESTMENTS, ,
Respondents. BY QZEF D;PUTY CLERK
Certified questions under NRAP 5 concerning statutory
limitations periods for declaratory judgment and quiet title actions. United
States Court of Appeals for the Ninth Circuit; Ronald M. Gould, Carlos T.
Bea, and Michelle T. Friedland, Circuit Judges.
Questions answered.
Akerman LLP and Melanie D. Morgan, Ariel E. Stern, and Lilith V. Xara,
Las Vegas,
for Appellant.
Kim Gilbert Ebron and Jacqueline A. Gilbert, Las Vegas; Roger P. Croteau
& Associates, Ltd., and Roger P. Croteau and Timothy E. Rhoda, Las Vegas,
for Respondent Thunder Properties, Inc.
Kim Gilbert Ebron and Diana S. Ebron and Jacqueline A. Gilbert, Las
Vegas,
for Amicus Curiae SFR Investments Pool 1, LLC.
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BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, STIGLICH, J.:
The United States Court of Appeals for the Ninth Circuit
certified questions to this court concerning the statute of limitations in a
declaratory relief and quiet title matter arising out of an HOA foreclosure
sale. The Ninth Circuit asks two questions:
(1) When a lienholder whose lien arises from
a mortgage for the purchase of a property brings a
claim seeking a declaratory judgment that the lien
was not extinguished by a subsequent foreclosure
sale of the property, is that claim exempt from
statutels] of limitations under City of Fernley v.
[State,] Department of Taxation, 132 Nev. 32, 366
P.3d 699 (2016)?
(2) If the claim described in (1) is subject to a
statute of limitations:
(a) Which limitations period applies?
(b) What causes the limitations period to
begin to run?
We respond to the Ninth Circuit that declaratory relief actions
are not categorically exempt from statutes of limitations under City of
Fernley v. State, Department of Taxation, 132 Nev. 32, 366 P.3d 699 (2016)-
We next determine that the four-year catch-all statute of limitations, NRS
11.220, applies to an action (like this one) to determine the validity of a lien
under NRS 40.010. And finally, the statute of limitations does not begin to
run until the titleholder affirmatively repudiates the lien, which does not
necessarily happen at the foreclosure sale.
2
FACTS
Because this is a certified question, the court takes the facts as
stated in the Ninth Circuit's order certifying the questions, U.S. Bank, N.A.
v. Thunder Properties, Inc., 958 F.3d 794 (9th Cir. 2020).
Briefly, appellant U.S. Bank, N.A., holds a first deed of trust on
the subject residential real property. Based on unpaid HOA assessments,
the HOA foreclosed on the property in 2011, and the bank made no effort to
challenge the foreclosure sale at that time. The property was subsequently
transferred to respondent Thunder Properties, Inc. In 2016, five years after
the sale, U.S. Bank sued for a declaration to quiet title. It stated that this
claim was made pursuant to the state and federal declaratory judgments
acts, as well as Nevada's quiet title statute. It also asserted other claims
that are not at issue here. The bank argued that it is entitled to a
declaration that its deed of trust was not extinguished by the sale and
remains a present interest in the property. Thunder Properties argued that
the statute of limitations began to run when the property was sold and has
since expired, such that the bank's suit must be dismissed. The federal
district court dismissed the bank's claim as time-barred. The bank
appealed, and the Ninth Circuit Court of Appeals certified the above-stated
questions of law to this court.
DISCUSSION
City of Fernley does not hold that declaratory relief actions are categorically
exempt from statutes of limitations
As to the Ninth Circuit's first certified question, we respond
that our holding in City of Fernley does not necessarily allow declaratory
relief in an action that is otherwise time-barred, because framing an action
as seeking declaratory relief does not provide a categorical exception to the
statute of limitations.
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In City of Fernley v. State, Department of Taxation, the city
challenged the constitutionality of a 1997 tax statute (the C-Tax) that
provided a new system for distributing tax revenues among cities. 132 Nev.
32, 36-37, 366 P.3d 699, 702-03 (2016). After Fernley incorporated as a city
in 2001, it did not meet criteria to receive increased C-Tax distributions. Id.
at 39, 366 P.3d at 704. Thus, the city received less tax revenue than other
cities with comparable populations. Id. at 39, 366 P.3d at 705. Eleven years
later, Fernley filed suit, seeking retrospective money damages, a
declaration that the C-Tax was unconstitutional, and an injunction barring
its future enforcement. Id. at 40 & n.4, 366 P.3d at 705 & n.4. The district
court granted summary judgment, however, after concluding that the
complaint was time-barred under NRS 11.220s four-year catch-all
limitations period. Id. at 41, 366 P.3d at 705-06.
In resolving Fernley's subsequent appeal, this court observed
that the "[t]he statute of limitations applies differently depending on the
type of relief sought," noting "two types of relief: retrospective relief, such
as money damages, and prospective relief, such as injunctive or declaratory
relief." Id. at 42, 366 P.3d at 706. Relying on the principle that statutes
must accord with constitutions, we recognized that permitting a statute of
limitations to bar challenge to an allegedly unconstitutional statutory
provision would undermine the constitutional supremacy doctrine. Id. at
42-44, 366 P.3d at 706-07. In City of Fernley, we thus concluded that "the
failure to file a claim within the statute of limitations period does not render
all relief time-barred because claimants retain the right to prevent future
violations of their constitutional rights." Id. at 44, 366 P.3d at 708
(emphasis added). And therefore, "the statute of limitations does not bar
Fernley's claims for injunctive and declaratory relief from an allegedly
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unconstitutional statute." Id. at 44, 366 P.3d at 707. Accordingly, City of
Fernley held that declaratory or injunctive relief to prevent future
constitutional violations is not subject to statutes of limitations based on
when the violation first began. It does not provide that declaratory relief is
categorically exempt from statutes of limitation.
Consistent with City of Fernley, a claim for declaratory relief
cannot be used to circumvent the statute of limitations absent an alleged
ongoing violation of a party's constitutional rights. If a statute of
limitations would bar a legal remedy based on the same substantive claim
as underlies a request for declaratory relief, the limitations period will
apply It] o prevent plaintiffs from making a mockery of the statute of
limitations." Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir.
1993) (quoting Gilbert v. City of Cambridge, 932 F.2d 51, 57 (1st Cir. 1991));
see also Taxpayers Allied for Constitutional Taxation v. Wayne County, 537
N.W.2d 596, 601 (Mich. 1995) ("Declaratory relief may not be used to avoid
the statute oflimitations for substantive relief."). In sum, declaratory relief
does not exempt a time-barred claim from the statute of limitations where
there is not an ongoing violation of a party's constitutional rights.1
1The bank argues that City of Fernley applies with equal force to
prospective statutory claims, relying on City of Fernley's citation to
Taxpayers Allied. The bank is mistaken. City of Fernley pertinently noted
that permitting the statute of limitations to bar suit to enjoin future
unconstitutional taxes would be improper because it "would truncate the
constitutional right." 132 Nev. at 43, 366 P.3d at 707 (quoting Taxpayers
Allied, 537 N.W.2d at 600). City of Fernley is silent as to declaratory relief
for a hypothetical statutory claim relating to an ongoing violation that is
otherwise time-barred.
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This is a quiet title action under NRS 40.010
Before reaching the Ninth Circuit's next question, we must
determine the nature of the relief sought to determine what limitations
period should apply. The bank's complaint asserted a claim for "Quiet
Title/Declaratory Judgment." It claimed an entitlement to a declaration
under 28 U.S.C. § 2201 (the federal Declaratory Judgments Act), NRS
30.040 (the state-law Uniform Declaratory Judgments Act), and NRS
40.010 (the quiet title statute).2 The nature of the claim, however, is that
the bank retained a valid first priority interest on the property via its deed
of trust because the HOA foreclosure sale, through which Thunder
Properties predecessor-in-interest acquired its interest, did not extinguish
the deed of trust.
Whether characterized as seeking declaratory relief or quiet
title, this court examines the nature of the substantive claim, as "Et)he
nature of the claim, not its label, determines what statute of limitations
applies." Perry v. Terrible Herbst, Inc., 132 Nev. 767, 770, 383 P.3d 257, 260
(2016). NRS 40.010 permits an action by a party that claims an interest in
real property against another party claiming an interest in that property to
resolve the competing claims. Rather than any particular elements, parties
must prove their interests in the property at issue and demonstrate
superiority of title. Chapman v. Deutsche Bank Nat'l Tr. Co., 129 Nev. 314,
318, 302 P.3d 1103, 1106 (2013). The parties here agree that Thunder
Properties' title is not in dispute and that they only dispute the validity of
a lien on that title. We have recognized that actions to resolve competing
2To the extent the bank argues it asserts a defense to which statutes
of limitations do not apply, it exceeds the scope of the certified questions
and thus the scope of this opinion.
6
claims to title and clouds on title are quiet title actions brought under NRS
40.010. Shadow Wood Homeowners Ass'n v. N.Y. Cmty. Bancorp, Inc., 132
Nev. 49, 58, 366 P.3d 1105, 1111 (2016). That the claim has been framed
as seeking declaratory relief does not change the applicable statute of
limitations; instead, courts generally apply the limitations period for the
substantive "claim on which the relief is based," because "M imitations
statutes do not apply to declaratory judgments as such." Luckenbach S.S.
Co. v. United States, 312 F.2d 545, 548 (2d Cir. 1963); see also Int? Ass'n of
Machinists & Aerospace Workers v. Tenn. Valley Auth., 108 F.3d 658, 668
(6th Cir. 1997) ("A request for declaratory relief is barred to the same extent
that the claim for substantive relief on which it is based would be barred.").
In this context, a declaration to quiet title resolving the status of the bank's
interest in the property is the substantive relief sought.
The four-year catch-all statute of limitations applies
Having determined that the bank seeks to quiet title and
determine that its lien was not extinguished, we answer the Ninth Circuit
that the catch-all limitations period set forth in NRS 11.220 applies.
"When a right of action does not have an express limitations
period, we apply the most closely analogous limitations period," if one
exists.3 Perry, 132 Nev. at 774, 383 P.3d at 262. Such an analogous period
does not always exist. Perry illustrates an analogous claim that may supply
a limitations period: a constitutional minimum-wage-amendment claim is
3We recognize that the doctrine of "analogous limitations" has
recently been superseded by statute. 2021 Nev. Stat., ch. 161, § 2, at 723-
24 (amending NRS 11.220). The amendment applies only prospectively,
however, id. § 3, at 724, and thus does not directly govern here. Though the
amendment is not retroactive, we have considered it in seeking to establish
a consistent rule.
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analogous to a statutory claim for failure to pay an employee the minimum
wage, and thus the limitations period for the statutory claim may be
applied. Id. at 768, 383 P.3d at 258. "NRS 11.220 provides a catch-all
limitations period for any right of action not otherwise provided for by law."
Id. at 770, 383 P.3d at 260. When a statutory category of claim is broad
enough to encompass many kinds of claims, such that it is "impossible to
analogize them to any other type of claim consistently," it is appropriate to
apply the catch-all provision. Id. at 773, 383 P.3d at 261-62.
As a threshold matter, we address the bank's claim that the
statute of limitations may depend on the plaintiffs theory of the case and
Thunder Properties argument that relies on the bank's fact-specific
assertion that the HOA's foreclosure sale did not comply with NRS Chapter
116. Both parties thus urge that courts look beyond the cause of action and
the relief sought and engage with specific arguments made to support that
cause of action. We decline to do so, as we have observed that "it is the
object of the action, rather than the theory upon which recovery is sought,
that is controlline in determining the statute of limitations. State Farm
Mut. Auto. Ins. Co. v. Wharton, 88 Nev. 183, 186, 495 P.2d 359, 361 (1972)
(alteration and quotation marks omitted); see also Szymborski v. Spring
Mountain Treatment Ctr., 133 Nev. 638, 643, 403 P.3d 1280, 1285 (2017)
(recognizing that "the gravamen of the claims rather than the gravamen of
the complaint determines statute of limitations issue?). Even if "[t]he
statute of limitations applies differently depending on the type of relief
sought," City of Fernley, 132 Nev. at 42, 366 P.3d at 706, the applicable
statute of limitations should not depend on highly case-specific facts or
arguments, see Owens v. Okure, 488 U.S 235, 240 (1989) (observing that
seeking analogous applications on a case-by-case basis may lead to
8
confusion and inconsistent results in determining the appropriate statute
of limitations). Focusing on the nature of the claim, rather than specific
case-by-case facts, serves "a primary goal of statutes of limitations"—
" [p]redictability." Id.
The bank argues that there is no clearly applicable statute of
limitations, while Thunder Properties and arnicus curiae SFR Investments
Pool 1, LLC, argue that the bank is suing upon a liability created by
statute" and is thus subject to NRS 11.190(3)(a). The bank's action has not
sought to hold Thunder Properties liable, but rather to determine the
viability of the bank's interest. We agree with the bank and conclude that
no statute of limitations specifically addresses a quiet title action involving
a nonpossessory lien.
Considering the statutes proffered by the parties in turn, we
conclude that none are suitably analogous. Rather, we conclude that this is
exactly the type of situation for which NRS 11.220s catch-all period was
built. The bank first argues that NRS 106.240 should apply. NRS 106.240
extinguishes a lien ten years after the debt secured by the deed of trust
becomes "wholly due." This statute does not address an analogous claim
involving whether a foreclosure extinguished a deed of trustholder's lien;
rather, it "creates a conclusive presumption that a lien on real property is
extinguished ten years after the debt becomes due." Pro-Max Corp. v.
Feenstra, 117 Nev. 90, 94, 16 P.3d 1074, 1077 (2001). The bank next argues
that NRS 40.090s 15-year limitations period should apply because the
claim is analogous to adverse possession. There is, however, no uncertainty
regarding title or ownership here. See Brundy v. Bramlet, 101 Nev. 3, 5,
692 P.2d 493, 495 (1985) ("Adverse possession allows peaceful resolution of
disputes over the ownership of real property and frees the alienation of that
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property by removing uncertainties regarding title."). The bank next argues
that NRS 104.3118(1), setting a six-year term for an action to enforce an
obligation to pay a note, is analogous. This argument is unpersuasive as
well; the bank seeks to determine whether its interest persists, not to
recover a debt due. Lastly, the bank argues that the quiet title actions
addressed in NRS 11.070 or NRS 11.080 are analogous. These provisions
apply, however, to claims where the plaintiff actually "was seized or
possessed of the premises in question," NRS 11.070; NRS 11.080, which is
not comparable to the bank's claims here. Amicus argues that the 30- and
90-day periods in NRS 107.080 to challenge a foreclosure sale are
analogous; however, the bank here does not seek to unwind that transaction
but rather to determine that its deed of trust persists notwithstanding the
sale. Amicus alternatively argues that the 60-day redemption period in
NRS 116.31166(3) is analogous, but the statutory right of redemption seeks
to restore an interest that has been extinguished, while the bank
distinguishably argues that its interest remains intact. See generally
Saticoy Bay LLC Series 9050 W Warm Springs 2079 v. Nev. Ass'n Servs.,
135 Nev. 180, 444 P.3d 428 (2019) (interpreting NRS 116.31166(3)).
Finally, amicus argues that the action is analogous to a suit to recover
property sold for taxes, see NRS 361.600, but again, the bank at no point
possessed and does not seek to recover the premises at issue here.
Accordingly, we conclude that the parties have not shown that the nature
of the claim here is analogous to tha.t of a claim provided for by another
statute of limitations.
A claim to determine the validity of a lien may be analogous to
various other actions, depending on the facts of the ease. But that does not
mean the court should engage in a fact-intensive inquiry to determine the
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statute of limitations on a case-by-case basis. Rather, precisely because it
is "impossible to analogize [these claims] to any other type of claim
consistently," it is appropriate to apply the catch-all provision. See Perry,
132 Nev. at 773, 383 P.3d at 261-62.
The four-year limitations period is not triggered until the titleholder
repudiates the lien
Finally, we consider the Ninth Circuit's question regarding
when the limitations period begins to run. We respond that the limitations
period does not begin to run until the lienholder receives notice of some
affirmative action by the titleholder to repudiate the lien or that is
otherwise inconsistent with the lien's continued existence.
Our recent decision in Berberich v. Bank of America, N.A., 136
Nev. 93, 460 P.3d 440 (2020), is instructive on this point. In Berberich, the
plaintiff purchased the property at an HOA foreclosure sale and, six years
later, sought to quiet title in himself by a judicial determination that the
foreclosure sale extinguished the lender's original deed of trust. Id. at 94,
460 P.3d at 441. We held that in such a case, "the limitations period is
triggered when the plaintiff is ejected from the property or has had the
validity or legality of his or her ownership or possession of the property
called into question." Id. at 97, 460 P.3d at 443. "[Mere notice of an adverse
claim is not enough." Id. (quoting Salazar v. Thomas, 186 Cal. Rptr. 3d 689,
696 (Ct. App. 2015) (alteration in original)). Rather, the period is triggered
when "someone presses an adverse claim." Id. Pressing an adverse claim
may consist of explicitly calling the owner's right to possession into question
or indirectly challenging the owner's interest by asserting that another
party has a senior interest. Id.Berberich does not directly control this case, as the bank here
has not asserted a right to possess the property. However, it is
11
straightforward to extend Berberich's discussion of when the limitations
period begins to run to this case. Berberich held that the statute of
limitations does not run against a property owner until he or she "has notice
of disturbed possession." Id. It takes more than mere notice of an adverse
claim to trigger the limitations period; some affirmative action is required.
Id. Applying the same principle, 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.
The HOA foreclosure sale, standing alone, is not sufficient to
trigger the period. As the bank has at least constructive notice—and likely
actual notice—of the foreclosure sale, it knows that there is a possibility the
purchaser will raise an adverse claim that the lien has been extinguished.
But the foreclosure sale is not itself that claim because the foreclosure sale
does not necessarily extinguish the lien. Of course, an HOA foreclosure can
extinguish a bank's deed of trust. SFR Invs. Pool 1, LLC v. U.S. Bank, N.A.,
130 Nev. 742, 758, 334 P.3d 408, 419 (2014). But it is also possible that a
foreclosure does not do so—for example, if the bank properly tendered the
superpriority amount, see Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 134
Nev. 604, 612, 427 P.3d 113, 121 (2018), or if tender was excused, 7510 Perla
Del Mar Ave Tr. v. Bank of Am., N.A., 136 Nev. 62, 63, 458 P.3d 348, 349
(2020). Thus, an HOA foreclosure sale—standing alone—does not
sufficiently call the bank's deed of trust into question to trigger the statute
of limitations. It is more akin to "notice of an adverse claim" than "notice of
disturbed possession" or "someone press [ing] an adverse claim." To rise to
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the level that would trigger the limitations period, something more is
required.4
CONCLUSION
Here, we consider another facet of the effect of HOA
foreclosures on lender deeds of trust, as posed by the United States Court
of Appeals for the Ninth Circuit in questions certified to this court. In
response, we conclude that City of Fernley does not establish that
declaratory judgments are categorically exempt from statutes of
limitations. Rather, that decision established only that suits seeking a
declaration to prevent future, ongoing violations of constitutional rights are
not time-barred. We further conclude that a claim seeking to quiet title by
declaring the validity of a lien is subject to a four-year statute of limitations.
And, consistent with Berberich, which held that the statute of limitations
does not begin to run on a titleholder's suit until the plaintiff had notice of
4 We disagree with our dissenting colleagues that this opinion is
advisory. Rather, whether a triggering action was present is beyond the
scope of our inquiry. That we do not decide whether such action was present
does not mean that this conclusion is not determinative. It simply involves
factual determinations beyond the certified facts and thus beyond the scope
of this review. Further, the dissent finds a "one-size-fits-all approach" in
our analysis that is not present, as we looked to the substance of the claims
raised, looking beyond whether the claimant labeled them as seeking quiet
title or declaratory relief. We agree that such actions can be mechanisms
to seek relief for a wide variety of claims. We also agree that the bank need
not take further action in cases of "tender or tender futility." However,
because the certified questions focus specifically on a claim arising from the
foreclosure sale, the analysis here thus focuses on whether the bank's
interest persisted as a consequence of the sale. The certified questions do
not present the matter of an action to quiet title based on a bank's claimed
property rights in general or any other particular basis. Accordingly, this
discussion concerns a claim on the specific basis of the consequence of a
foreclosure sale.
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disturbed possession—rather than mere notice of an adverse claim—the
statute of limitations does not begin to run on a lienholder's suit until a
comparable act occurs, such as the titleholder's repudiation of the lien.
Because an HOA foreclosure sale may or may not extinguish a lien, such a
sale does not, without more, trigger the limitations period.
A/Zsgli-.0 J.
Stiglich
We concur:
1:
241)14"644,117.7.J.
Parraguirre
,.J. , J.
Hardesty Herndon
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A:. ,
PICKERING, J., with whom CADISH and SILVER, JJ., agree, concurring
in part and dissenting in part:
This case comes to us under NRAP 5. This rule permits us to
answer certified questions about Nevada law when the answers "may be
determinative of the cause then pending in the certifying court." NRAP
5(a). But "[t]his court lacks the constitutional power to render advisory
opinions." Echeverria v. State, 137 Nev., Adv. Op. 49, 495 P.3d 471, 475
(2021). So, to proceed under NRAP 5, it must appear to the court that "its
answers may 'be determinative of part of the federal case, there is no
controlling [Nevada] precedent, and the answer will help settle important
questions of law." Volvo Cars of N. Am., Inc. v. Ricci, 122 Nev. 746, 751, 137
P.3d 1161, 1164 (2006) (quoting Ventura Grp. v. Ventura Port Dist., 16 P.3d
717, 719 (Cal. 2001)).
The answers the majority gives to the Ninth Circuit's questions
do not meet these criteria. In the first place, the majority's opinion is
impermissibly advisory—it opines that all of the Bank's claims are subject
to the four-year catch-all statute of limitations in NRS 11.220 but then holds
that the HOA foreclosure sale did not start the clock running on any of
them. For a statute of limitations to matter, the cause of action must first
accrue. See NRS 11.010 ("Civil actions can only be commenced within the
periods prescribed in this chapter, after the cause of action shall have
accrued.") (emphasis added). If the cause of action has not accrued, which
statute of limitations applies is academic. Declaratory judgment is
available to parties in this position, provided their disagreement is ripe and
will "terminate the uncertainty or controversy," NRS 30.080, but the action
is not time-barred, whether under a three-, four-, or five-year limitations
period.
Second, and more fundamentally, the majority errs by adopting
a one-size-fits-all approach to the statute of limitations questions posed.
Quiet title and declaratory judgment actions can serve as the vehicle for a
variety of claims. Such actions do not carry a single statute of limitations
that operates the same way for all types of claims. On the contrary, the
statute of limitations that applies and its trigger depend on the theory that
underlies the claim. Salazar v. Thomas, 186 Cal. Rptr. 3d 689, 694-95 (Ct.
App. 2015) (holding that, in the quiet title context, "courts refer to the
underlying theory of relief to determine the applicable period of
limitatione); see also Las Vegas Dev. Grp., LLC v. Blaha, 134 Nev. 252, 257,
416 P.3d 233, 237 (2018) (applying the five-year statute of limitations in
NRS 11.080 instead of the shorter limitation periods in NRS 107.080(5)-(6)
to a quiet title action where the theory was the HOA foreclosure sale
extinguished the first deed of trust, such that the trustee lacked authority
thereafter to conduct a deed-of-trust foreclosure sale); 74 C.J.S. Quieting
Title § 58 (2013) (discussing how the theory underlying the quiet title claim
determines the statute of limitations, if any, that applies); 65 Am. Jur. 2d
Quieting Title and Determination of Adverse Claims § 46 (2021) (similar).
The majority recognizes as much—acknowledging that the five-year statute
of limitations that Berberich v. Bank of Am., N.A., 136 Nev. 93, 95, 460 P.3d
440, 442 (2020), holds governs an HOA-foreclosure-sale buyer's quiet title
action against the deed-of-trust holder does not apply when the roles are
reversed, and the deed-of-trust holder sues the foreclosure-sale buyer to
quiet title.
Instead of answering the Ninth Circuit's statute of limitations
questions in the abstract, I would tie the answers to the claims alleged in
the Bank's complaint. See In re Fontainebleau Las Vegas Holdings, 128
2
Nev. 556, 570, 289 P.3d 1199, 1207 (2012) (consulting the facts stated by
the certifying court and alleged in the federal court complaint in answering
questions certified under NRAP 5). In its complaint, the Bank alleges that
its deed of trust is superior to Thunder's title on two different theories.
First, it maintains that the HOA lien foreclosure sale was unfair and
produced a grossly inadequate price, such that equity should invalidate it
under Shadow Wood Homeowners Ass'n v. N.Y. Cmty. Bancorp, Inc., 132
Nev. 49, 57, 366 P.3d 1105, 1110 (2016), and its progeny. See Nationstar
Mortg., LLC v. Saticoy Bay LLC Series 2227 Shadow Canyon, 133 Nev. 740,
749, 405 P.3d 641, 648 (2017) (discussing Shadow Wood and noting that,
while "mere inadequacy of price is not in itself sufficient to set aside the
foreclosure sale . . . it should be considered together with any alleged
irregularities in the sales process to determine whether the sale was
affected by fraud, unfairness, or oppression" and should be set aside on the
basis of equity). Second, the Bank alleges that tender of the superpriority
portion of the lien was futile and therefore excused, such that the HOA lien
foreclosure sale failed to extinguish its deed of trust by operation of law.
Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 134 Nev. 604, 610, 427 P.3d
113, 120 (2018) (Diamond Spur) (holding that "under the split-lien scheme,
tender of the superpriority portion of an HOA lien satisfies that portion of
the lien by operation of law," so the HOA lien foreclosure sale does not
extinguish the first deed of trust); see also 7510 Perla Del Mar Ave Tr. v.
Bank of Am., N.A., 136 Nev. 62, 67, 458 P.3d 348, 351-52 (2020) (extending
Diamond Spur to hold that, where the tendering party knew tender "would
have been rejected," tender is excused, and the deed of trust survives as if
tender had occurred).
3
As to the Bank's first theory—its Shadow Wood-based claim for
equitable relief from the HOA lien foreclosure sale—I agree that the catch-
all four-year statute of limitations in NRS 11.220 applies. This claim is not
an "action upon a liability created by statute," so NRS 11.190(3)(aÿs three-
year statute of limitations does not apply. See U.S. Bank Nat'l Asen v. SFR
Invs. Pool I, LLC, 376 F. Supp. 3d 1085, 1091 (D. Nev. 2019). And the Bank
does not possess or assert a right to possess the property, so NRS 11.070
and NRS 11.080 and their five-year limitations periods do not apply either.
See id. Last, a Shadow Wood-type claim seeks to set aside an HOA
superpriority lien foreclosure sale deed that, if not set aside, extinguished
the first deed of trust. Nevada's ancient mortgage statute, NRS 106.240,
providing for the expiration of a deed of trust ten years after the note it
secures became fully due, sets an outside expiration date. It does not revive
an already-extinguished deed of trust.
The majority and I part company, though, on what triggers the
•statute of limitations on a first deed-of-trust holder's Shadow Wood-based
claim for equitable relief from an HOA foreclosure sale. Applying the same
rule to all such challenges, whether equitable or tender-based, the majority
•firmly holds that "an HOA foreclosure sale—standing alone does not
sufficiently call the bank's deed of trust into question to trigger the statute
of limitations"; "something more is required." Majority op. at 12, 13. But
this conflicts fundamentally with a Shadow Wood-based claim, which seeks
to set aside, on equitable grounds, an HOA superpriority lien foreclosure
sale that allegedly extinguished the first deed of trust. If a superpriority
lien foreclosure sale does not call the deed of trust sufficiently into question
to trigger the statute of limitations, it is hard to imagine what would. At
least in the context of a Shadow Wood-based claim for equitable relief from
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an HOA superpriority lien foreclosure sale, I would hold, as several federal
courts have held, that the HOA superpriority lien foreclosure sale triggers
the four-year statute of limitations in NRS 11.220. U.S. Bank Nat'l Ass'n,
376 F. Supp. 3d at 1091; Bank of N.Y. Mellon v. 4655 Gracemont Ave. Tr.,
No. 2:17-cv-00063-JAD-PAL, 2019 WL 1598745, at *4 (D. Nev. Apr. 12,
2019); Bank of Am., N.A. v. Giavanna Homeowners Asen, No. 2:18-cv-
00288-RFB-VCF, 2019 WL 1407411, at *2-3 (D. Nev. Mar. 28, 2019).
The Bank's second theory—that tender or tender futility
preserved its deed of trust by operation of law—stands on a different
footing. Under Diamond Spur, tender or tender futility extinguishes the
superpriority portion of the HOA lien, invalidating the foreclosure sale as
to the first deed of trust. 134 Nev. at 612, 427 P.3d at 121 (stating that
"after a valid tender of the superpriority portion of an HOA lien, a
foreclosure sale on the entire lien is void as to the superpriority portion,
because it cannot extinguish the first deed of trust on the property"); see
also 7510 Perla Del Mar Ave Tr., 136 Nev. at 67, 458 P.3d at 352 (extending
Diamond Spur to tender futility). Under this theory, the Bank's deed of
trust and the HOA buyer's deed do not conflict. The deed of trust survives
the HOA lien foreclosure sale, such that the HOA buyer takes title subject
to the Bank's deed of trust. The Bank is under no obligation to take further
action to protect its deed of trust against the lien foreclosure sale buyer. See
Newport v. Hatton, 231 P. 987, 991 (Cal. 1924) (noting that in the quiet title
context "[a] party holding the paramount claim to a legal title is not called
upon to take action against a hostile claim which is not of a nature to ripen
into a valid adverse title"); 74 C.J.S. Quieting Title, supra, § 58 ("An
equitable suit to quiet title in relation to a void deed is not subject to a
statute of limitations that applies if a deed is voidable.") (footnote omitted).
5
And the deed of trust remains enforceable until it expires under the statutes
applicable thereto. See NRS 104.3118(1) (the statute of limitations for
judicial foreclosure is six years after the debt's maturity date). Compare
NRS 106.240 (providing that a deed of trust is canceled ten years after the
obligation it secures becomes fully due), with Facklam v. HSBC Bank USA,
133 Nev. 497, 497, 401 P.3d 1068, 1069 (2017) (holding that "because
statutes of limitations only apply to judicial actions, and a nonjudicial
foreclosure by its very nature is not a judicial action," a lender may pursue
nonjudicial foreclosure of a deed of trust despite the contract-based statute
of limitations having run on the note secured by the deed of trust). The
four-year catch-all statute of limitations thus does not apply to the Bank's
tender/tender futility claim.
Last, this case differs from City of Fernley v. State,
Department of Taxation, 132 Nev. 32, 366 P.3d 699 (2016).1 The plaintiff in
City of Fernley challenged the constitutionality of a tax distribution scheme.
Id. at 36, 366 P.3d at 702. Although it let the statute of limitations run on
its accrued damages claim, the scheme was ongoing, with annual
distributions projected into the future. Id. at 44, 366 P.3d at 707-08. The
statute of limitations had not run as to the future distributions, so the City
was entitled to pursue declaratory and injunctive relief as to future
'Like the majority, I note the Bank's argument that statutes of
limitations do not apply to defenses, Dredge Corp. v. Wells Cargo, Inc., 80
Nev. 99, 102, 389 P.2d 394, 396 (1964); see Ferrell St. Tr. v. Bank of Am.,
N.A., No. 78691, 2021 WL 911893, at *1 (Nev.. Mar. 9, 2021) (citing Dredge
and noting that "[w]e have also held that statutes of limitation do not run
against defenses such as tendee), but leave that issue for another day, since
the Bank does not adequately develop it and neither Thunder nor amicus
curiae addresses it.
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distributions on a continuing claim theory. Id. at 43-44, 366 P.3d at 707-
08.
In sum, I concur in the majority's decision to apply a four-year
statute of limitations to the Bank's equitable claim to set aside the HOA
foreclosure sale. Otherwise, I respectfully dissent.
J.
We concur:
Cadish
J.
Silver
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