Ldg Golf, Inc. v. Bank Of America, N.A. ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
LDG GOLF, INC., A CALIFORNIA No. 83056
CORPORATION,
Appellant,
vs.
BANK OF AMERICA, N.A., A NATIONAL Fl
BANKING ASSOCIATION,
Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order granting a motion
for summary judgment in an action to quiet title. Eighth Judicial District
Court, Ronald J. Israel, Judge. Reviewing the summary judgment de novo,
Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005), we
affirm .1
In July 2009, respondent's predecessor recorded a Notice of
Default indicating that the former property owners were in default on their
mortgage payments. In October 2009, respondent's predecessor recorded
another Notice of Default. In 2011, respondent's predecessor recorded a
Notice of Rescission that rescinded the October 2009 Notice of Default.
Appellant is the successor to an entity that purchased the
subject property at an HOA foreclosure sale. In previous litigation, this
court affirmed a summary judgment in favor of respondent and against
appellant's predecessor, concluding that the HOA's foreclosure sale did not
extinguish respondent's deed of trust. See La Jolla Deu. Grp. LLC v. Bank
'Pursuant to NRAP 3401), we have determined that oral argument
is not warranted.
of Am., N.A., No. 74882, 2019 WL 1876696 (Nev. April 25, 2019) (Order
Affirming Appeal and Dismissing Cross Appeal).
After this court affirmed the summary judgment, appellant
filed the underlying quiet title action. Its action was premised on NRS
106.240's 10-year liniitations period and the allegation that the two Notices
of Default recorded in 2009 triggered the 10-year period, such that by 2019,
respondent's deed of trust no longer encumbered the property. The district
court granted summary judgment, reasoning that the 2011 Notice of
Rescission effectively rescinded both Notices of Default, such that NRS
106.240's 10-year period was reset. Cf. SFR Invs. Pool 1, LLC v. U.S. Bank,
N.A., 138 Nev., Adv. Op. 22, 507 P.3d 194, 197-98 (2022) (concluding that a
subsequently recorded Notice of Rescission is effective to reset NRS
106.240's 10-year time period that may have been triggered by recording a
Notice of Default).
Appellant contends that the district court erred in determining
that the 2011 Notice of Rescission effectively rescinded both 2009 Notices of
Default. In particular, appellant contends that the Notice of Rescission
expressly rescinded only the October 2009 Notice of Default, thereby leaving
the July 2009 Notice of Default intact to trigger NRS 106.240. While we
appreciate appellant's contention that the July 2009 Notice of Default
remained intact, we are not persuaded that the July 2009 Notice of Default
was effective to accelerate the loan and to arguably make it "wholly due" for
purposes of NRS 106.240. As this court has recognized, acceleration of a
debt must "be exercised in a manner so clear and unequivocal that it leaves
no doubt as to the lender's intention." Clayton v. Gardner, 107 Nev. 468,
470, 813 P.2d 997, 999 (1991) (quoting United States v. Feterl, 849 F.2d 354,
357 (8th Cir. 1988)). Here, although the 2009 Notice of Default stated that
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respondent's predecessor "does hereby declare all sums secured [by the deed
of trust] immediately due and payable," the Notice also provided that the
former homeowners could cure the default "upon the Payment of the
amounts required by [NRS 107.080] without requiring payment of that
portion of the principal and interest which would not be due had no default
occurred." Given this conflicting language, we conclude that the July 2009
Notice of Default was not "so clear and unequivocal" as to "leave[ ] no doubt
as to [respondent's predecessor's] intention." Clayton, 107 Nev. at 470, 813
P.2d at 999. Accordingly, we conclude that the district court correctly
determined that NRS 106.240's 10-year period did not elapse by virtue of
the July 2009 Notice of Default. Cf. Saavedra-Sandoval v. Wal-Mart Stores,
Inc., 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010) (recognizing that this
court rnay affirm the district court on any ground supported by the record,
even if not relied upon by the district court).
Appellant suggests that our above rationale is precluded by our
decisions in Glass v. Select Portfolio Servicing, No. 78325, 2020 WL 3604042(Nev. july 1, 2020) (Order of Affirmance), and SFR Investment.s Pool 1, LLC
v. U.S. Bank, N.A., 138 Nev., Adv. Op. 22, 507 P.3d 194 (2022). In
particular, appellant appears to contend those decisions stand for the
proposition that recording a Notice of Default is always effective to
accelerate a loan. However, neither Glass nor SFR stand for such a
proposition. In Glass, we assumed for purposes of our analysis that such a
proposition was correct. See Glass, 2020 WL 3604042 at *1 ("The parties do
not dispute that the Notice of Default accelerated the loan and made the
balance immediately due."). And although our decision in SFR could be
interpreted to stand for such a proposition, see 138 Nev., Adv. Op. 22, 507
P.3d at 195 ("Those notices [of default] accelerated the homeowners' loan
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balance, thereby arguably making the loan 'wholly due' for purposes of NRS
106.240."), that isolated statement in our summary of the 2000s financial
crisis was not intended to be an across-the-board holding that recording a
Notice of Default is always effective to accelerate a loan, see Liu v.
Christopher Homes, LLC, 130 Nev. 147, 151, 321 P.3d 875, 877 (2014)
(observing that this court reviews de novo the interpretation of its previous
opinions). Consistent with the foregoing, we
ORDER the judgment of the district court AFFIRMED.2
Parraguirre
J. Sr. J.
Herndon
cc: Hon. Ronald J. Israel, District Judge
Charles K. Hauser, Settlement Judge
Hong & Hong
Akerman LLP/Las Vegas
Eighth District Court Clerk
2The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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