7510 Perla Del Mar Ave Trust v. Bank of America

The Supreme Court affirmed the judgment of the district court finding that a deed of trust beneficiary's agent was excused from making a formal tender, such that under Bank of America, N.A. v. SFR Investments Pool 1, LLC, 427 P.3d 113 (Nev. 2018), the ensuing foreclosure sale did not extinguish the first deed of trust, holding that substantial evidence supported this finding.

In Bank of America, the Supreme Court held that a deed of trust beneficiary can preserve its deed of trust by tendering the superpriority portion of a homeowners' association's (HOA) lien before the foreclosure sale is held. At issue was whether an offer to pay the superpriority amount when that amount is determined constitutes a tender sufficient to preserve the first deed of trust. The Supreme Court answered the question in the negative but held that a formal tender is excused when evidence shows that the party entitled to payment had a known policy of rejecting such payments. Specifically, the Court held (1) the beneficiary was excused from making a formal tender because, pursuant to a known policy, its tender would have been rejected; and (2) therefore, the beneficiary preserved its interest in the property such that the property was purchased subject to the beneficiary's first deed of trust.