Armstrong v. U.S. Bank Nat'L Ass'N ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
TYRONE KEITH ARMSTRONG, No. 83545
Appellant,
vs.
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR STRUCTURED { L Es D
ASSEST SECURITIES CORPORATION
MORTGAGE PASS-THROUGH AUG 11 2022
CERTIFICATES, SERIES 2007-BC3; niamaclua, wets
OCWEN LOAN SERVICING, LLC; PHH CLERK OF SVPREME Com
MORTGAGE CORPORATION; AND PUTACLERI
WESTERN PROGRESSIVE-NEVADA,
INC.,
Respondents.
ORDER AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
This is a pro se appeal from a district court order granting
summary judgment in a quiet title action. Eighth Judicial District Court,
Clark County; Mary Kay Holthus, Judge.!
Appellant filed the underlying action asserting claims for quiet
title, wrongful foreclosure, slander of title, and declaratory relief. The
district court granted summary judgment for respondents on all of
appellants’ claims on the ground that they were time-barred by the
applicable statute of limitations. Appellant does not challenge on appeal
the summary judgment as to the claims for wrongful foreclosure, slander of
title, and declaratory relief. Accordingly, we affirm the district court’s
summary judgment insofar as it pertains to those claims. See Powell v.
Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3
1Pursuant to NRAP 34(f)(3), we have determined that oral argument
is not warranted.
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(2011) (recognizing that this court does not address issues that are not
raised in an opening brief).
With respect to appellant’s quiet title claim, the district court
concluded that it was time-barred by NRS 11.080’s five-year limitations
period. In doing so, it reasoned that the five-year period was triggered in
2010 when respondents and their predecessors recorded a Notice of Default
against appellant’s property in relation to a deed of trust that purportedly
secured a loan for the property.
We agree with appellant that the district court erred in
determining that the 2010 Notice of Default triggered the five-year
limitations period. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d
1026, 1029 (2005) (reviewing de novo a district court’s decision to grant
summary judgment). We held in Berberich v. Bank of America, N.A., 136
Nev. 93, 97, 460 P.3d 440, 443 (2020), that “the limitations period [under
NRS 11.080] is triggered when the plaintiff is ejected from the property or
has had the validity or legality of his or her ownership or possession called
into question.” In doing so, we observed that “a notice of default issued on
a deed of trust has been found insufficient to dispute an owner's possession
because it does not call into question the validity of the owner’s control of
the property ... by asserting someone else was entitled to possess the
property.” Jd. (internal quotation marks and alterations omitted).
Here, the district court appears to have reasoned that, despite
Berberich, the 2010 Notice of Default called into question appellant’s
ownership of the property because appellant disputed the validity of the
loan secured by the deed of trust. However, appellant remains the
undisputed owner and possessor of the property; the dispute between
appellant and respondents is simply whether the property is encumbered
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by a deed of trust. Thus, we conclude that under Berberich, the 2010 Notice
of Default did not trigger NRS 11.080’s five-year limitations period.?
Moreover, respondents and their predecessors recorded a Notice of
Rescission in 2012 that rescinded the 2010 Notice of Default, and we
recently reaffirmed that a Notice of Rescission effectively resets the statute
of limitations that is triggered by recording a Notice of Default. See SFR
Inus. Pool 1, LLC v. U.S. Bank, N.A., 1388 Nev., Adv. Op. 22, 507 P.3d 194,
198 (2022) (recognizing, albeit not in the context of NRS 11.080, that a
Notice of Rescission resets the statute of limitations); Holt v. Reg’l Tr. Servs.
Corp., 127 Nev. 886, 892, 266 P.3d 602, 606 (2011) (“A notice of rescission
renders moot disputes concerning the notice of default ....”). Thus, even
under respondents’ and the district court’s interpretation of Berberich, any
potential triggering effect that the 2010 Notice of Default had would have
been negated by the 2012 Notice of Rescission. While the record in this case
contains additional evidence that may support different triggering dates,
we address only the issues as they have been framed by the parties. See
2Respondents contend that under U.S. Bank, N.A. v. Thunder
Properties, Inc., 138 Nev., Adv. Op. 3, 503 P.3d 299, 306 (2022), the
limitations period was triggered when appellant took affirmative action to
repudiate the lien. However, Thunder Properties did not address the
triggering date for a property owner’s quiet title action, and it is inapposite
to appellant’s quiet title claim here.
3To the extent that the district court relied on an isolated allegation
in appellant’s pro se complaint to support its conclusion that the 2010 Notice
of Default triggered the limitations period, we decline to affirm on this basis,
particularly when that allegation is inconsistent with Berberich and the
facts of this case, as well as when it does not appear that appellant was
seeking to gain an undue advantage by including that allegation in his
complaint. Cf. Hansen v. Universal Health Servs. of Nev., Inc., 112 Nev.
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Senjab v. Alhulaibi, 137 Nev., Adv. Op. 64, 497 P.3d 618, 619 (2021) (We
will not supply an argument on a party’s behalf but review only the issues
the parties present.”). Consistent with the foregoing, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.‘
QD) naa eer
Parraguirre Y
Biter. J.
Silver
cc: Hon. Mary Kay Holthus, District Judge
Tyrone Keith Armstrong
Houser LLP
Fox Rothschild, LLP/Las Vegas
Eighth District Court Clerk
1245, 1247-48, 924 P.2d 1345, 1346 (1996) (noting this court’s preference
that cases be decided on the merits).
4The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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