FED. NAT'L MORTG. ASS'N v. WESTLAND LIBERTY VILL., LLC , 2022 NV 57 ( 2022 )

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138 Nev., Advance Opinion 57
IN THE SUPREME COURT OF THE STATE OF NEVADA
FEDERAL NATIONAL MORTGAGE No. 82174
ASSOCIATION; AND GRANDBRIDGE
REAL ESTATE CAPITAL, LLC,
Appellants,
: FILED :
WESTLAND LIBERTY VILLAGE, LLC,
A NEVADA LIMITED LIABILITY : AUG 11 2022 3
COMPANY; AND WESTLAND
VILLAGE SQUARE, LLC, A NEVADA OF pele
LIMITED LIABILITY COMPANY, BY -
IEF DEPUTY CLERK
Respondents.
Appeal from a district court order granting a preliminary
injunction and denying appointment of a receiver in a dispute concerning
real property loan agreements. Eighth Judicial District Court, Clark
County; Kerry Louise Earley, Judge.
Reversed and remanded.
Snell & Wilmer LLP and Kelly H. Dove, Nathan G. Kanute, and Bob L.
Olson, Las Vegas,
for Appellant Federal National Mortgage Association.
Holland & Hart LLP and Joseph G. Went, Lars K. Evensen, and Sydney R.
Gambee, Las Vegas,
for Appellant Grandbridge Real Estate Capital, LLC.
Campbell & Williams and J. Colby Williams and Philip R. Erwin, Las
Vegas; Law Offices of John Benedict and John Benedict, Las Vegas; and
Westland Real Estate Group and John W. Hofsaess, Long Beach, California,
for Respondents.
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Fennemore Craig, P.C., and Leslie Bryan Hart and John D. Tennert, Reno,
for Amicus Curiae Federal Housing Finance Agency.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, STIGLICH, J.:
This appeal permits us to clarify when a lender or its assignee
is entitled to the appointment of a receiver after a borrower defaults on a
real property loan agreement. The borrower here owns properties housing
multi-family apartment complexes, and the lender observed a significant
decrease in occupancy after the borrower assumed ownership. The lender’s
inspector observed that significant repairs were needed, and the lender
demanded deposits into repair and replacement escrow accounts, relying on
specific provisions in the loan agreements. The borrower did not make the
demanded deposits, which the lender deemed a default under the loan
agreements. The lender sued and sought a receiver. The borrower
countersued, alleging breach of contract and seeking a_ preliminary
injunction. The district court found that there was no default and issued a
wide-ranging preliminary injunction, reaching matters that had been
neither briefed nor argued.
We have not previously had cause to interpret NRS 32.260(2)(b)
and NRS 107A.260(1)(a)(1), which provide that a lender is entitled to the
appointment of a receiver when the borrower agrees to such in the event of
a default and, after a default, the lender seeks a receiver in enforcing the
loan, NRS 32.260(2), or the property is subject to the assignment of rents,
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NRS 107A.260(1). As the lender has an entitlement to a receiver in such
instances, appointment of a receiver is not subject to the district court’s
discretion. The agreement itself may state what circumstances constitute
a default.
The district court here erred in disregarding the loan
agreements’ provisions setting forth what constituted a default. The loan
agreements contain clear terms setting forth the parties’ obligations and
what constitutes default. The borrower here failed to perform several duties
mandated under the loan agreements, including the duty to make the
demanded deposits, and this failure constituted default. As the borrower
agreed to the provisions in the loan documents stating that the lender may
obtain a receiver in the event of default, the lender was entitled to the
appointment of a receiver on the borrower's default, and the district court
abused its discretion in refusing to appoint one. The district court further
abused its discretion in issuing a preliminary injunction because it rested
its order on clearly erroneous factual determinations, did not apply the
relevant standards for injunctive relief, and failed to recognize the lender’s
entitlement to a receiver. We accordingly reverse and remand.!
FACTS AND PROCEDURAL HISTORY
This appeal involves a dispute concerning mortgage loans
entered into to finance the purchase of two properties housing multi-family
apartment complexes. Appellant Federal National Mortgage Association
(Fannie Mae) is the successor-in-interest to the original lender for the loan
agreements; appellant Grandbridge Real Estate Capital, LLC, is its loan
servicer. Respondents Westland Liberty Village, LLC, and Westland
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
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Village Square, LLC (collectively, Westland) are the successors-in-interest
to the original borrowers. The predecessor borrowers executed a loan
agreement for approximately $9.4 million to finance the purchase of a
property known as “Village Square Apartments.” The predecessor
borrowers executed another mortgage loan agreement for $29 million to
purchase “Liberty Village Apartments.” The predecessor lender held a note
and deed of trust on each property (loan documents). The agreements have
materially equivalent operative provisions. The predecessor lender
assigned both Village Square and Liberty Village loan documents to Fannie
Mae. Westland executed assumption and release agreements to take on the
Village Square and Liberty Village loan obligations, including payment and
performance obligations, from the original borrowers and guarantors. In
doing so, Westland expressly adopted all of the terms and obligations of the
loan documents and associated instruments.
Compliance with the provisions of these agreements is at the
essence of this dispute. The loan agreements provide that the borrower
shall pay the expenses to maintain and repair the property (§ 6.02(b)). The
borrower must permit the lender or its agent to inspect the property, subject
to routine constraints, such as business hours (§ 6.02(d)). If, in connection
with an inspection, the lender determines that the property has
deteriorated beyond that of ordinary wear and tear, the lender may obtain
a property condition assessment (PCA) at the borrower’s expense (§ 6.03(c)).
The lender may require additional lender repairs or replacements on the
basis of the PCA (§ 6.03(c)).
Additional repairs and deposits
With timely written notice, the lender may require the borrower
to make an additional deposit to the replacement reserve account or the
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repairs escrow account “if Lender determines that the amounts on deposit
in either [account] are... not sufficient to cover the costs for .. . Additional
Lender Repairs...or Additional Lender Replacements,” pursuant to
section 13.02(a)(9) (§ 13.02(a\(4)). Section 13.02(a)(9) provides that the
lender may require the borrower to make additional lender repairs or
replacements and provides general terms for the lender to disburse from the
reserve or escrow accounts to pay for those repairs when all other conditions
are met (§ 13.02(a)(9)(B)). It further provides that “[nJothing in this Loan
Agreement shall limit Lender’s right to require an additional deposit to the
[reserve or escrow accounts]” or to require additional monthly deposits for
additional lender repairs or replacements. The borrower may contest any
demanded deposit’s amount or validity by the appropriate legal process,
though the lender may require the borrower to deposit the contested
sum (§ 12.02(e)). Whether additional deposits or repairs are warranted
generally falls within the lender’s discretion throughout the agreement.
Defaults
The loan agreements set forth numerous automatic default
events, including any failure by the borrower to deposit any amount
required by the agreement (§ 14.01(a)(1)). In the event of a default, the
lender has the option to accelerate the loan and demand payment of all the
remaining unpaid balance and any other money due; it may also
foreclose (§ 14.02(a)). The lender need not disburse payments for repairs or
replacements from the reserve or escrow accounts if there is a default
(§$§ 13.02(a), 14.02(b)).
Pursuant to the deed of trust, the borrower agrees to assign all
rents to the lender. In the event of a default, the lender may request the
court to appoint a receiver. If the lender chooses to seek a receiver, the
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borrower expressly consents to the appointment of a receiver. The original
borrowers signed each deed of trust in executing it, and Westland expressly
assumed all of the terms of the collected loan documents.
After Westland began operating the apartment complexes,
Fannie Mae observed a substantial decrease in occupancy rates and became
concerned that this decline resulted from deterioration in the condition of
the properties. Fannie Mae inspected the properties’ condition and then
retained a third-party inspector to produce a PCA, documenting the repairs
needed, for each property. The inspector examined the properties and
concluded that Village Square was in substandard condition, Liberty
Village was in fair to poor condition, and they required approximately $1.09
million and $1.75 million, respectively, in repairs and replacements.
Fannie Mae’s agent sent Westland notices of demand for each
property, requiring Westland to deposit an aggregate sum of approximately
$2.8 million in the repairs escrow accounts. The notices also increased
monthly deposits to the repairs escrow accounts by $9,557. Westland
responded that there was no basis to demand the deposit, there was no
failure to maintain because the properties were dilapidated when they were
acquired, the repairs requested improperly constituted ordinary wear and
tear repairs, and Fannie Mae had no right to conduct a PCA. Fannie Mae
filed and served notices of default based on Westland’s purported failures
to maintain the properties and to make the required account deposits.
Fannie Mae petitioned the district court for the appointment of
a receiver. In response, Westland moved for a preliminary injunction to
enjoin any foreclosure proceedings, opposed the appointment of a receiver,
and asserted counterclaims, alleging Fannie Mae breached the loan
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agreement. Westland named Grandbridge as a third-party defendant,
asserting claims against it as Fannie Mae’s agent.
The district court held a hearing and expressed doubt that
Westland defaulted because Fannie Mae did not show that Westland ceased
paying entirely. It found a factual dispute as to the alleged default and
found that Westland would suffer irreparable harm in losing the properties
by foreclosure. It thus concluded that a preliminary injunction was
warranted and that a receiver was not. The court enjoined Fannie Mae from
acting to foreclose, interfering with Westland’s operation of the properties,
appointing a receiver, possessing the property, enforcing a judgment or
security interest against the properties without court approval, or taking
any adverse action against any Westland-affiliated corporate entity with
respect to any other loans. The court further required that Fannie Mae turn
over the monthly debt service invoices, disburse any funds paid in excess of
the monthly debt service obligations, disburse any excess funds Fannie Mae
held in a repairs account, pay Westland the interest that would have been
earned had certain monies been held in an interest-bearing account rather
than one that did not, and timely respond to disbursement requests. And
the court struck the notices of demand, notices of default, acceleration of the
notes, and the demands and notices per NRS 107A.270.2
“This court stayed operation of provisions in the district court’s order
directing Fannie Mae to remove the notices of default and election to sell
from the properties’ titles, such that those notices remain of record, though
we did not stay operation of the remaining provisions. Fed. Nat'l Mortg.
Ass'n v. Westland Liberty Vill., LLC, Docket No. 82174, at *2 (Order
Granting Stay in Part and Denying Stay in Part, Feb. 11, 2021) (staying
paragraphs 2 and 3).
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Fannie Mae appealed. In addition to Fannie Mae’s challenge,
Grandbridge appealed, asserting that it should not be subject to the
injunction because it did not timely become a party to the litigation. Federal
Housing Finance Agency (FHFA), which serves as conservator for Fannie
Mae, filed an amicus brief.
DISCUSSION
We review for an abuse of discretion a district court’s decisions
whether to appoint a receiver, Med. Device All., Inc. v. Ahr, 116 Nev. 851,
862, 8 P.3d 135, 142 (2000), abrogated on other grounds by Costello v. Casler,
127 Nev. 436, 440 n.4, 254 P.3d 631, 634 n.4 (2011), or to grant a
preliminary injunction, Shores v. Glob. Experience Specialists, Inc., 134
Nev. 503, 505, 422 P.3d 1238, 1241 (2018). “An abuse of discretion can occur
when the district court bases its decision on a clearly erroneous factual
determination or disregards controlling law.” Las Vegas Metro. Police Dep’t
v. Blackjack Bonding, Inc., 131 Nev. 80, 89, 343 P.3d 608, 614 (2015).
The district court erred in finding Westland did not default
Fannie Mae argues that the district court clearly erred when it
found a dispute as to Westland’s default. It argues that Westland defaulted
by triggering certain events specified in the contract as constituting default,
including failing to provide additional deposits requested into the repairs
escrow account, failing to maintain the properties, and failing to permit
Fannie Mae to inspect the properties. Westland concedes that it did not
make the requested deposits but argues that this was not a default because
Fannie Mae was not permitted to unilaterally demand additional deposits.
Westland argues that there was “no monetary default” because it was
current on its monthly payments.
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We interpret unambiguous contracts according to the plain
language of their written terms. Canfora v. Coast Hotels & Casinos, Inc.,
121 Nev. 771, 776, 121 P.3d 599, 603 (2005). Contracts must be read as a
whole without negating any term. Rd. & Highway Builders, LLC v. N. Nev.
Rebar, Inc., 128 Nev. 384, 390, 284 P.3d 377, 380 (2012). And courts will
look to an agreement’s terms to determine what events constitute a default.
See Squyres v. Zions First Nat'l Bank, 95 Nev. 375, 377, 594 P.2d 1150, 1152
(1979); see also 68A Am. Jur. 2d Secured Transactions § 426 (2014) (“[T]he
security agreement itself must define the standards for determining
whether a default occurs, and any breach by the debtor of the terms of the
security agreement constitutes a default, entitling the secured party to any
available remedies therefor ... .” (footnotes omitted)). We review contracts
de novo, May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005),
but we defer to the district court’s factual findings and will not set them
aside unless they are clearly erroneous or not supported by substantial
evidence, Sowers v. Forest Hills Subdivision, 129 Nev. 99, 105, 294 P.3d
427, 432 (2013).
During its hearing on the competing claims for relief, the
district court focused on whether Westland was making monthly payments
to the escrow accounts to any extent, finding a factual dispute as to default
for this reason. The court found that Westland submitted documentation
showing no deterioration and that Fannie Mae was required to show
deterioration before Westland could default. It thus found “substantial
factual disputes” regarding default.
The district court clearly erred in finding that Westland did not
default because it disregarded the provisions of the loan agreement. Section
6.03(c) of the loan agreement permits Fannie Mae to order a PCA after
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inspecting the properties and to require additional lender repairs or
replacements on this basis. If Fannie Mae concludes that existing amounts
on deposit in the corresponding reserve or escrow accounts are inadequate,
it may require additional deposits under section 13.02(a)(4). The loan
agreement leaves these determinations to Fannie Mae’s discretion, and
section 13.02(a)(9) further provides that nothing in the agreement limits
Fannie Mae’s right to require additional deposits. Westland may dispute a
required repair or deposit, but section 12.03(e) requires that Westland use
the appropriate legal process and permits Fannie Mae to demand that
Westland deposit the contested amount. If Westland fails to pay any
required amount, that is a default under section 14.01(a)(1). Fannie Mae
would then have the rights to accelerate the loan and foreclose under section
14.02(a).
Here, Fannie Mae inspected the property in connection with a
decline in occupancy and obtained a PCA. The PCA concluded that
extensive repairs were required, and Fannie Mae accordingly demanded
that Westland deposit an amount to pay for the expected costs of the repairs.
Westland did not deposit this amount or challenge the demand through the
procedures set forth in the agreement—facts that it concedes—and thus
defaulted. The loan agreement does not contain any term supporting
Westland’s contention that it could only default by failing to make its
monthly payments. Westland’s counterclaims do not constitute a proper
way to dispute Fannie Mae’s demand. And evidence showing that Westland
conducted certain repairs does not cure the default under the terms of the
loan agreement. The district court clearly erred in ruling otherwise and in
looking solely to Westland’s monthly payments without considering Fannie
Mae’s entitlement to demand additional deposits.
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The district court abused its discretion in failing to appoint a receiver
Fannie Mae thus argues that the district court abused its
discretion in denying its application for a receiver because it disregarded
Westland’s obligations under the loan agreement in finding that Westland
did not default. Relying on NRS 32.260, Fannie Mae subsequently argues
that a recelver was warranted because Westland agreed in the deed of trust
to the appointment of a receiver on default and the properties were subject
to waste and dissipation.? And relying on NRS 107A.260, Fannie Mae
argues that it was entitled to a receiver because the properties were subject
to the assignment of rents and the same agreement in the deed of trust to a
receiver, Westland argues that no receiver was warranted because the
district court found that the properties had not deteriorated. We agree with
Fannie Mae.
This appeal presents the first opportunity this court has had to
interpret NRS 32.260 and NRS 107A.260. Statutory interpretation is a
question of law that we review de novo. Leven v. Frey, 128 Nev. 399, 402,
168 P.3d 712, 714 (2007). “Generally, when a statute’s language is plain
and its meaning clear, the courts will apply that plain language.” Jd. at 403,
168 P.3d at 715.
Nevada enacted NRS 32.260 in adopting the Uniform
Commercial Real Estate Receivership Act and NRS 107A.260 in adopting
the Uniform Assignment of Rents Act. NRS 32.100; NRS 107A.010. NRS
32.260 provides for both the mandatory and the discretionary appointment
3Fannie Mae also asserts without argument that NRS 107.100
supports its entitlement to a receiver. We need not consider this assertion.
See Edwards v. Emperor’s Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d
1280, 1288 n.38 (2006).
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of a receiver. NRS 32.260(1) states conditions when a receiver “may” be
appointed. This includes when a party with an apparent interest in the
property shows that the property is subject to or at risk “of waste, loss,
dissipation[,] or impairment.” NRS 32.260(1)(a)(1). In stating that the
district court “may” appoint a receiver, the statute provides the court
discretion whether to appoint a receiver in situations under NRS 32.260(1).
See Sengbusch v. Fuller, 103 Nev. 580, 582, 747 P.2d 240, 241 (1987) (“May’
is to be construed as permissive, unless the clear intent of the legislature is
to the contrary.”); see also Unif. Commercial Real Estate Receivership Act
§ 6 cmt. 1 (2015) (explaining that the draft language enacted in NRS
32.260(1) reflected the historical approach permitting a court to exercise its
discretion in settling whether a receiver was needed to preserve or
administer a property); cf SFR Inus. Pool 1, LLC v. U.S. Bank, N.A., 130
Nev. 742, 744, 334 P.3d 408, 410 (2014) Cooking to uniform law and its
commentary when interpreting a Nevada statute based on that uniform
law), holding modified on other grounds by Saticoy Bay LLC Series 350
Durango 104 v. Wells Fargo Home Mortg., 138 Nev. 28, 32, 388 P.3d 970,
974 (2017).
NRS 32.260(2), meanwhile, provides that “a mortgagee is
entitled to appointment of a receiver” in connection with enforcing the
mortgage in certain instances, including when “|t|he mortgagor agreed in a
signed record to appointment of a receiver on default.” NRS 32.260(2)(b).
In providing that “a mortgagee is entitled to appointment of a receiver,” the
Legislature conferred a right to such mortgagees to demand that a court
appoint a receiver, instead of conferring a discretionary right on district
courts. See Unif. Commercial Real Estate Receivership Act § 6(b) (stating
alternative operative language for this provision for legislatures to enact,
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(OP LITA 422 P.3d at 1241 (requiring a movant to “show
a likelihood of success on the merits of their case and that they will suffer
irreparable harm without preliminary relief” to obtain a preliminary
injunction and reversing a district court’s decision to issue a preliminary
injunction where it relied on a clearly erroneous factual finding). We
continue because the district court’s order contains several deficiencies that
warrant our attention.
An order granting an injunction must state why it issued, its
specific terms, and the acts restrained or required in reasonable detail.
NRCP 65(d)(1). When the district court here issued an injunction that
ranged beyond the scope of the relief sought by Westland or briefed and
argued by the parties, it violated this requirement by imposing vague and
overbroad mandates. For instance, paragraph 4 enjoins Fannie Mae from
“interferling] with Westland’s enjoyment of the Properties.” The order
found that Fannie Mae inspected the properties, sent notices regarding its
deposit demand, and pursued foreclosures. The order does not contain
findings showing a reason for thts injunction to issue, as there was no
suggestion that Fannie Mae had interfered with Westland’s enjoyment, and
it does not state what is restrained in reasonable detail. Many other of the
numerous specific injunctions within the district court’s order have similar
deficiencies, lacking specific findings to show a reason that they should
issue or reasonable precision as to what specifically is mandated. We
caution district courts to exercise care in ensuring that injunctions provide
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the requisite guidance to the enjoined party and do not exceed the scope of
that required to serve the injunction’s purpose.®
CONCLUSION
We conclude that the district court erred in determining that
Westland did not default and failing to apprehend Fannie Mae’s entitlement
to a receiver. The loan agreements define what constitutes a default, and
under the agreements, Westland defaulted. The loan documents further
provide that Westland agreed to the appointment of a receiver in the event
of default. Fannie Mae relied on this agreement in seeking the appointment
of a receiver after Westland defaulted. Under NRS 32.260(2)\(b) and NRS
107A.260(1)(a)(1), Fannie Mae was entitled to the appointment of a receiver
in this instance. Accordingly, the district court abused its discretion in
‘Further, while “li]Jt is common practice for Clark County district
courts to direct the prevailing party to draft the court’s order,” King v. St.
Clair, 1384 Nev. 137, 142, 414 P.3d 314, 318 (2018), the court must “ensure
that the proposed order drafted by the prevailing party accurately reflects
the district court’s findings,” Byford v. State, 123 Nev. 67, 69, 156 P.3d 691,
692 (2007). We urge prevailing parties to take appropriate care to submit
suitable draft orders that accurately reflect the findings, Schoenberg v.
Benner, 59 Cal. Rptr. 359, 368 (Ct. App. 1967), and district courts to
scrutinize those draft orders, being mindful that they assume responsibility
for those findings and attendant rulings upon entry of the order, Kamuchey
v. Trzesniewski, 98 N.W.2d 403, 406-07 (Wis. 1959). This obligation
warrants particular care where the opposing party objects that the draft
order strays from the record.
In light of our disposition, we need not reach Grandbridge’s argument
that it received inadequate notice of Westland’s request for a preliminary
injunction or Fannie Mae’s argument that the injunction was void ab initio
for violating the anti-injunction clause of the Housing and Economic
Recovery Act, 12 U.S.C. § 4617(f) (2018).
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entering a preliminary injunction and denying the request for a receiver.
We reverse and remand for further proceedings.
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