Branch Banking and Trust Co. v. Giordano ( 2015 )

 Three days after filing its complaint, BB&T held a trustee's
sale for the relevant property. Notably, BB&T failed to amend its
complaint or make any application for a deficiency judgment within six
months of the trustee's sale. Giordano then filed a motion to dismiss per
NRCP 12(b)(5), which the district court granted based on BB&T's failure
to comply with NRS 40.455. BB&T challenges the district court's decision,
arguing that anti-deficiency protections do not apply when an obligee files
a pre-foreclosure complaint under NRS 40.495(2) and then forecloses on
the property before the district court awards a judgment under NRS
40.495(4)(b).
DISCUSSION
This court reviews a district court's order granting a motion to
dismiss for failure to state a claim under "a rigorous, de novo standard."
Pack v. LaTourette, 128 Nev. , 277 P.3d 1246, 1248 (2012). In
reviewing the sufficiency of the claim, this court "accept[s] the plaintiff[']s
factual allegations as true and then determine[s] whether these
allegations are legally sufficient to satisfy the elements of the claim
asserted." Id. at , 277 P.3d at 1248.
Generally, NRS 40.455 requires a party seeking a deficiency
judgment to file an application with the court within six months after a
trustee's sale. In Lavi v. Branch Banking & Trust Company, we held that
waiver of the one-action rule does not waive anti-deficiency protections,
and that those protections are available upon foreclosure, even when a
separate action is brought under NRS 40.495(2). 1 See 130 Nev.
1 Giordano's waiver of anti-deficiency protections is unenforceable.
See NRS 40.453.
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325 P.3d 1265, 1267-68 (2014). Additionally, NRS 40.495(3) specifically
permits a guarantor to assert the anti-deficiency protections under NRS
40.451 to 40.4639 when an "obligee maintains an action to foreclose or
otherwise enforce a mortgage or lean and the indebtedness or obligations
secured thereby. . . ." Although we did not directly address NRS 40.495(4)
in Lavi, we stated that the subsection could be harmonized with that
case's outcome because it "does not deny applicability of the deficiency
judgment defenses or the six-month deadline," but "governs the amount
due from the guarantor. . . ." See id. at , 325 P.3d at 1268.
BB&T's failure to timely file its application for a deficiency
judgment with the court per NRS 40.455 was fatal. That BB&T brought
the action under NRS 40.495(2) does not change the outcome. Once BB&T
completed the foreclosure sale, Giordano was entitled to raise anti-
deficiency protections, including NRS 40.455, pursuant to NRS 40.495(3).
As Lavi clarified, the Legislature's addition of NRS 40.495(4) has no effect
on this analysis. Therefore, the district court did not err by granting
Giordano's motion to dismiss. 2
2 We reject BB&T's alternative assertion that it is entitled to amend
its complaint to comply with NRS 40.455. Despite BB&T's arguments to
the contrary, NRS 40.430 does not incorporate the anti-deficiency statutes
into its provisions, and therefore, NRS 40.435(2) is not applicable.
Moreover, we do not believe that equity or justice requires an alternative
outcome.
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Accordingly, we ORDER the judgment of the district court
AFFIRMED.
J.
Hardesty
Chsza
Cherry
J.
cc: Hon. Gloria Sturman, District Judge
Michael H Singer, Settlement Judge
Sylvester & Polednak, Ltd.
Gordon Silver
Eighth District Court Clerk
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