Opinion
No. 64185
11-14-2014
KK REAL ESTATE INVESTMENT FUND, LLC, A NEVADA LIMITED LIABILITY COMPANY, Appellant, v. CAPITAL ONE, N.A., SUCCESSOR BY MERGER TO ING BANK, FSB, A NATIONAL ASSOCIATION, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF REVERSAL AND REMAND
This is an appeal from a district court order granting a motion to dismiss in a quiet title action. Eighth Judicial District Court, Clark County; Valorie J. Vega, Judge.
The district court granted Capital One's motion to dismiss, finding that KK Real Estate Investment Fund had failed to state a viable claim for relief because NRS 116.3116(2)'s superpriority provision does not extinguish a first security interest. This court's recent disposition in SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 130 Nev. ___, 334 P.3d 408 (2014), decides that a common-interest community association's NRS 116.3116(2) superpriority lien has true priority over a first security interest, and the association may nonjudicially foreclose on that lien. The district court's decision thus was based on an erroneous interpretation of the controlling law and did not reach the other issues colorably asserted. Accordingly, we
REVERSE the order granting the motion to dismiss AND REMAND this matter to the district court for further proceedings consistent with this order.
The injunction imposed by our October 30, 2013, order is vacated.
/s/_________, J.
Hardesty
/s/_________, J.
Douglas
CHERRY, J., concurring:
For the reasons stated in the SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 130 Nev. ___, 334 P.3d 408 (2014), dissent, I disagree that respondent lost its lien priority by virtue of the homeowners association's nonjudicial foreclosure sale. I recognize, however, that SFR Investments is now the controlling law and, thusly, concur in the disposition of this appeal.
/s/_________, J.
Cherry
cc: Hon. Valorie J. Vega, District Judge
Alessi & Koenig, LLC
Ballard Spahr, LLP
Eighth District Court Clerk