Wells Fargo Bank, N.A. v. Gabriel, 111519 NVSC, 75817
|Opinion Judge:||GIBBONS, C.J.|
|Party Name:||WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2007-06, ASSET-BACKED CERTIFICATES, SERIES 2007-06, Appellant, v. ELENA P. GABRIEL, AN INDIVIDUAL; AND APOLONIO GABRIEL, AN INDIVIDUAL, Respondents.|
|Judge Panel:||Silver, J., Douglas, J. Hon. Jerry A. Wiese, District Judge, Hon. Kerry Louise Earley, District Judge, William C. Turner, Settlement Judge|
|Case Date:||November 15, 2019|
|Court:||Supreme Court of Nevada|
ORDER OF AFFIRMANCE
This is an appeal from a district court final judgment following a bench trial in a quiet title action.1 Eighth Judicial District Court, Clark County; Jerry A. Wiese and Kerry Louise Ear ley, Judges. We review a district court's legal conclusions following a bench trial de novo, but we will not set aside the district court's factual findings unless they are clearly erroneous or not supported by substantial evidence. Wells Fargo Bank, N.A. v. Radecki, 134 Nev. 619, 621, 426 P.3d 593, 596 (2018).
Appellant contends that although Article 7.1 of the HOA's CC&Rs recognizes the HOA's superpriority lien right, Article 7.2 contained a "restrictive covenant" wherein the HOA promised never to exercise that right. In particular, Article 7.2 provides: No violation or breach of, or failure to comply with any provision of this Master Declaration, and no action to enforce any such provision shall affect, defeat, render invalid or impair the lien of any First Mortgage ....
Presumably, appellant is suggesting that an HOA's foreclosure of its lien is an "action" and that Article 7.1 is the "provision" that is being "enforced" by the foreclosure. If so, we are not persuaded that an HOA's "promise" to never exercise its superpriority lien rights can be logically distinguished from a "waiver" of those rights that is prohibited by NRS 116.1104. See SFR Invs. Pool 1, LLC v. U.S. Bank, N.A., 130 Nev. 742, 757-58, 334 P.3d 408, 419 (2014) (recognizing that NRS 116.1104 invalidates CC&R provisions that purport to waive an HOA's superpriority lien rights).2 Accordingly, the district court correctly determined that the HOA did not foreclose on only the subpriority portion of its lien.
Appellant also contends that the district court should have set aside the sale on equitable grounds because appellant introduced evidence showing the...
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