IN THE SUPREME COURT OF THE STATE OF NEVADA
7963 LAURENA AVENUE TRUST, No. 81240
Appellant,
vs.
THE BANK OF NEW YORK MELLON,
F/K/A THE BANK OF NEW YORK, AS
TRUSTEE FOR THE
FILED
CERTIFICATEHOLDERS CWABS, FEB 1 7 O2
INC., ASSET-BACKED CERTIFICATES,
13ROWN
SERIES 2005-AB4, COURT
-•=t1-4
Res e ondent. CLERK
ORDER OF AFFIRMANCE
This is an appeal from a district court order granting summary
judgment, certified as final under NRCP 54(b), in an action to quiet title.
Eighth Judicial District Court, Clark County; Timothy C. Williams, Judge.1
The district court determined that the HONs 2013 foreclosure
sale did not extinguish the first deed of trust because respondent's agent
made a superpriority tender. In so doing, the district court presumably
determined that respondent's 2017 counterclaims for quiet title and
declaratory relief were timely under NRS 11.080s five-year limitations
period.
Having considered the parties arguments and the record, we
conclude that the district court properly granted summary judgment for
respondent, albeit for a different reason. Saavedra-Sandoval v. Wal-Mart
Stores, Inc., 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010) (recognizing that
this court may affirm the district court on any ground supported by the
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
SUPREME COURT
OF
NEVADA
(0) 1947A .16Akt.
2 7._-- os3t
record, even if not relied upon by the district court). In particular,
respondent asserted tender as an affirmative defense in its March 2019
answer to appellant's complaint in intervention. Statutes of limitations do
not run against affirmative defenses. See Dredge Corp. v. Wells Cargo, Inc.,
80 Nev. 99, 102, 389 P.2d 394, 396 (1964) (Limitations do not run against
defenses."), see also City of Saint Paul, Alaska v. Evans, 344 F.3d 1029,
1033-34 (9th Cir. 2003) (examining "the interplay between statutes of
limitations and defenses" and concluding that such limitations do not apply
to defenses because "[w]ithout this exception, potential plaintiffs could
simply wait until all available defenses are time barred and then pounce on
the helpless defendane). Accordingly, respondent was not time-barred
under any applicable limitations period from asserting tender.2
Appellant additionally contends that the district court
improperly granted respondent equitable relief and, relatedly, that the
HOA sale purchaser was protected as a bona fide purchaser because
evidence of the tender was not publicly recorded. However, we recently
reiterated that those arguments are inapposite because a superpriority
tender preserves a first deed of trust as a matter of law and does not
constitute a "conveyance" that needs to be recorded. See Saticoy Bay LLC
Series 133 McLaren v. Green Tree Servicing LLC, 136 Nev., Adv. Op. 85, 478
P.3d 376, 379 (2020) ("While a court's authority to look beyond a foreclosure
deed in a quiet title action is an inherent equitable power, a valid tender
cures a default 'by operation of law'—that is, without regard to equitable
2To the extent appellant is suggesting that respondent needed to
assert "tendee in the form of "an affirmative claim for relief instead of as
an affirm.ative defense, we are not persuaded. As explained below,
respondent was not seeking equitable relief by virtue of arguing that the
superpriority tender preserved the first deed of trust.
2
considerations." (internal citation omitted))3; id. (rejecting the argument
that evidence of a tender needs to be recorded because "[t]endering the
superpriority portion of an HOA lien does not create, alienate, assign, or
surrender an interest in land." (quoting Bank of Am., N.A. v. SFR Invs. Pool
1, LLC, 134 Nev. 604, 609, 427 P.3d 113, 119 (2018))). Accordingly, we
ORDER the judgment of the district court AFFIRMED.4
arraguirre
/ 4-A J. , Sr.J.
Hardesty Gibbons
cc: Hon. Timothy C. Williams, District Judge
TRILAW
Law Offices of Michael F. Bohn, Ltd.
Wolfe & Wyman LLP
Akerman LLP/Las Vegas
Eighth District Court Clerk
3Inthis regard, and as appellant acknowledges in its reply brief, the
subpriority portion of an HONs lien remains in default even after the
superpriority default has been cured, meaning that the foreclosure deed's
recitation of there being a "default" remains accurate.
4The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
3