Secured Assets Belvedere Tower v. Davis ( 2015 )

 After the tax sale, SABT and U.S. Bank each sought the
excess tax sale proceeds.' SABT requested the excess tax sale proceeds as
the holder of the receiver's certificate. U S Bank requested the excess tax
sale proceeds as both the holder of other receiver's certificates and as the
beneficiary of a deed of trust. Concluding that excess tax sale proceeds
could be remitted to the beneficiary of a deed of trust, but not to the holder
of a receiver's certificate, the Treasurer remitted all of the excess tax sale
proceeds to U.S. Bank and denied SABT's request for the proceeds.
SABT then filed a petition for judicial review of the
Treasurer's denial of its request for the excess tax sale proceeds. The
district court denied SABT's petition because it concluded that U.S. Bank's
deed of trust had priority over SABT's receiver's certificate. SABT now
appeals.
The district court correctly determined that U.S. Bank's deed of trust had
priority over SABT's receiver's certificate
SABT argues that the district court erred by determining that
U.S. Bank's deed of trust had priority over the receiver's certificate
because U S Bank waived the priority of its deed of trust by seeking a
receivership and by drafting the order appointing a receiver. 2
'Belvedere Towers Owners Association (BTOA) also sought excess
tax sale proceeds. While this appeal was pending, BTOA settled its claims
against U.S. Bank relating to the distribution of these proceeds, and a
stipulated dismissal was entered. In light of this dismissal, we do not
address the issues raised by BTOA in this matter.
2 By failing to raise the argument in its opening brief, SABT waived
its argument that U.S. Bank is judicially estopped from arguing that it did
not waive the priority of its deed of trust. See Powell v. Liberty Mut. Fire
Ins. Co., 127 Nev. , n.3, 252 P.3d 668, 672 n.3 (2011).
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Standard of review
We review an agency's legal determinations and the
interpretation of a promissory note de novo. Harrah's Operating Co. v.
State, Dep't of Taxation, 130 Nev. „ 321 P.3d 850, 852 (2014)
(reviewing an agency's legal determination de novo); Redrock Valley
Ranch, LLC v. Washoe Cnty., 127 Nev. „ 254 P.3d 641, 647-48
(2011) (reviewing issues of contract interpretation de novo); Key Bank of
Alaska v. Donnels, 106 Nev. 49, 52, 787 P.2d 382, 384 (1990) (applying
principles of contract interpretation to promissory notes).
U.S. Bank's deed of trust was recorded first, so it had priority over
the receiver's certificate
A lien's priority is generally based on the date which it was
recorded. See In re Wilson's Estate, 56 Nev. 500, 501, 56 P.2d 1207, 1208
(1936) (stating that recorded conveyances "impart notice to all persons of
the contents thereof; and subsequent purchasers and mortgagees shall be
deemed to purchase and take with notice" (internal quotations omitted));
cf. NRS 111.325 (providing that unrecorded conveyances are void against
subsequent recorded conveyances to bona fide purchasers for value). U.S.
Bank's deed of trust was recorded before SABT's receiver's certificate was
recorded. Therefore, the deed of trust has priority over the receiver's
certificate unless the deed of trust was subordinated to the receiver's
certificate.
The receivership and the receiver's certificate did not subordinate
U.S. Bank's deed of trust
A "receiver's possession is subject to all valid and existing
liens upon the property at the time of his appointment, and does not divest
a lien previously acquired in good faith." State ex rel. Irving Nat'l Bank v.
Second Judicial Dist. Court, 47 Nev. 86, 93, 217 P. 962, 963 (1923); see
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also Cal. Nat'l Bank of Sacramento v. El Dorado Lime & Minerals Co., 2
P.2d 785, 786 (Cal. 1931) ("A receiver takes control of property subject to
all existing interests."). Thus, a receiver's certificate does not
automatically take priority over a preexisting deed of trust. See Robbins
u. Newberg, 85 F.2d 754, 757 (9th Cir. 1936) (holding that a receiver's
certificate did not take priority over an existing mortgage). Therefore,
neither the existence of the receivership nor the receiver's certificate
affected the priority of U.S. Bank's deed of trust because it predated both.
U.S. Bank did not waive the priority of its deed of trust
Waiver is "the intentional relinquishment of a known right."
Merrill v. DeMott, 113 Nev. 1390, 1400, 951 P.2d 1040, 1046 (1997). A
party may implicitly waive a right by "engag[ing] in conduct so
inconsistent with an intent to enforce the right as to induce a reasonable
belief that the right has been relinquished." Nev. Yellow Cab Corp. v.
Eighth Judicial Dist. Court, 123 Nev. 44, 49, 152 P.3d 737, 740 (2007).
Petitioning for a receivership does not implicitly waive the
priority of a lien against a property because this action can be consistent
with preserving a lienholder's interest in a subsequent satisfaction of its
lien. See Anes v. Crown P'ship, Inc., 113 Nev. 195, 199, 932 P.2d 1067,
1069 (1997) (observing that one purpose of appointing a receiver is to
" preserve [a receivership estate's] value for the benefit of the person or
entity subsequently determined to be entitled to the property").
Furthermore, drafting a proposed order does not constitute a waiver of a
right. See, e.g., In re Oil Spill by Amoco Cadiz off Coast of France on
March 16, 1978, MDL No. 376, 1988 WL 2796, at *2 (N.D. Ill. Jan. 14,
1988) (stating that drafting a proposed order does not waive a right to
challenge the ruling); see also In re Bahn, 13 S.W.3d 865, 875 (Tex. App.
2000) (same). Thus, neither seeking the appointment of a receiver nor
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drafting a district court's order appointing a receiver constitutes a waiver
of a right.
The fact that U.S. Bank petitioned for a receivership and
drafted the district court's order appointing a receiver does not
demonstrate that it intended to waive the priority of its deed of trust.
Thus, U.S. Bank's deed of trust retained priority over SABT's receiver's
certificate. 3 As a result, the district court did not err in denying SABT's
petition for judicial review. 4 Therefore, we
ORDER the judgment of the district court AFFIRMED.
Saitta
J.
Gibbons
J.
Pickering
'Since U.S. Bank's deed of trust had priority over SABT's receiver's
certificate, we decline to address whether the holder of a receiver's
certificate is eligible to recover excess tax sale proceeds under NRS
361.610.
We have considered the parties' remaining arguments and conclude
4
that they are without merit.
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cc: Hon. Janet J. Berry, District Judge
Wm. Patterson Cashill, Settlement Judge
Cecilia Lee, Ltd.
Woodburn & Wedge
Snell & Wilmer, LLP/Tucson
Washoe County District Attorney/Civil Division
Snell & Wilmer, LLP/Las Vegas
Washoe District Court Clerk
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