Booher v. Las Vegas Motorcoach Resort Owners Ass'n. C/W 65546 ( 2015 )

 back a note secured by a first deed of trust on the property. Starting in
December 2010, Chisano stopped paying the assessment fees owed to the
Las Vegas Motor Coach Resort homeowners' association (LVMC).
Eventually, LVMC recorded a lien and a notice of foreclosure sale against
Lot 75 for the total amount of its super- and subpriority liens. The day
before the sale, Chisano sent an email to LVMC offering to deliver
$15,939.33 to LVNIC to avoid foreclosure, an amount that surpassed the
superpriority lien. LVMC rejected Chisano's offer and proceeded with the
foreclosure sale on February 24,2012. LVMC foreclosed on Lot 75 with a
credit bid of $28,145.03, which constituted the total amount of its super-
and subpriority lien. Thereafter, LVMC filed a complaint to quiet title
against Chisano and the Boohers. Prior to this court's SFR decision, the
district court granted Chisano and the Boohers' motion for summary
judgment concluding that, under NRS 116.3116, a first deed of trust is not
extinguished by an HOA foreclosure sale; rather, the statute provides only
a payment priority.
The district court's order granting summary judgment was
based on a view of the law that this court largely invalidated in SFR. On
appeal, the parties acknowledge as much but urge us to resolve the case
based on issues regarding notice, tender, and credit bidding—arguments
that were alluded to but not fully developed below. Our review of the
briefing and argument in the district court convinces us that doing so
would be inappropriate. It is crucial, in the summary judgment setting,
that both the parties and the district court properly develop the facts and
the law applicable to those facts so that the determination of whether
there exist genuine issues of material fact to preclude summary judgment
can be fairly and accurately made. Cf. Sehuck v. Signature Flight Support
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of Nev., Inc., 126 Nev. 434, 437, 245 P.3d 542, 544 (2010) (declining to
address arguments that appellant did not make when opposing summary
judgment in the district court, concluding that "parties may not raise a
new theory for the first time on appeal, which is inconsistent with or
different from the one raised below" (internal quotation marks omitted)).
From the record presented on appeal, it does not appear that
the alternative issues tendered to us as potential bases to reverse or affirm
the summary judgment order were fully and adequately vetted in the
district court. The most appropriate ruling, therefore, is to vacate the
district court's order granting summary judgment to Chisano and the
Boohers based on a view of the law since invalidated by SFR and remand
for such further proceedings on the issues of notice, tender, and credit
bidding as may be appropriate. From this, it follows that the order
assessing costs and denying attorney fees should also be vacated. For
these reasons, we
ORDER the judgment of the district court VACATED AND
REMAND this matter to the district court for proceedings consistent with
this order.
024 -4-1c , CA.
t. rre
Hardesty
MA,
Saitta
_ J.
Gibbons Pickering
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cc: Hon. Michelle Leavitt, District Judge
Deaner, Malan, Larsen & Ciulla
Greenberg Traurig, LLP/Las Vegas
Eighth District Court Clerk
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