                                                   130 Nev., Advance Opinion 75

                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                SFR INVESTMENTS POOL 1, LLC, A                     No. 63078
                NEVADA LIMITED LIABILITY
                COMPANY,
                Appellant,
                vs.
                U.S. BANK, N.A., A NATIONAL                            SEP 1 8 2014
                BANKING ASSOCIATION AS
                TRUSTEE FOR THE CERTIFICATE
                HOLDERS OF THE BANC OF                                 HI       CLE


                AMERICA MORTGAGE PASS-
                THROUGH CERTIFICATES, SERIES
                2008-A,
                Respondent.


                           Appeal from a district court order dismissing a complaint and
                denying injunctive relief. Eighth Judicial District Court, Clark County;
                Nancy L. Allf, Judge.
                            Reversed and remanded.


                Howard Kim & Associates and Jacqueline A. Gilbert, Howard C. Kim, and
                and Diana S. Cline, Henderson,
                for Appellant.

                Merman LLP and Ariel E. Stern and Natalie L. Winslow, Las Vegas,
                for Respondent.



                BEFORE THE COURT EN BANC.




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                                                        OPINION


                      By the Court, PICKERING, J.:
                                  NRS 116.3116 gives a homeowners' association (HOA) a
                      superpriority lien on an individual homeowner's property for up to nine
                      months of unpaid HOA dues. With limited exceptions, this lien is "prior to
                      all other liens and encumbrances" on the homeowner's property, even a
                      first deed of trust recorded before the dues became delinquent. NRS
                      116.3116(2). We must decide whether this is a true priority lien such that
                      its foreclosure extinguishes a first deed of trust on the property and, if so,
                      whether it can be foreclosed nonjudicially. We answer both questions in
                      the affirmative and therefore reverse.
                                                            I.
                                  This dispute involves a residence located in a common-interest
                      community known as Southern Highlands. The property was subject to
                      Covenants, Conditions, and Restrictions (CC&Rs) recorded in 2000. In
                      2007 it was further encumbered by a note and deed of trust in favor of, via
                      assignment, respondent U.S. Bank, N.A. By 2010, the former
                      homeowners, who are not parties to this case, had fallen delinquent on
                      their Southern Highlands Community Association (SHHOA) dues and also
                      defaulted on their obligations to U.S. Bank. Separately, SHHOA and U.S.
                      Bank each initiated nonjudicial foreclosure proceedings.
                                  Appellant SFR Investments Pool 1, LLC (SFR) purchased the
                      property at the SHHOA's trustee's sale, which took place on September 5,
                      2012. SFR received and recorded a trustee's deed reciting compliance with
                      all applicable notice requirements. In the meantime, the trustee's sale on
                      U.S. Bank's deed of trust had been postponed to December 19, 2012. Days
                      before then, SFR filed an action to quiet title and enjoin the sale. SFR
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                    alleged that the SHHOA trustee's deed extinguished U.S. Bank's deed of
                    trust and vested clear title in SFR, leaving U.S. Bank nothing to foreclose.
                                The district court temporarily enjoined the U.S. Bank trustee's
                    sale pending briefing and argument on SFR's motion for a preliminary
                    injunction. Ultimately, the district court denied SFR's motion for a
                    preliminary injunction and granted U.S. Bank's countermotion to dismiss.
                    It held that an HOA must proceed judicially to validly foreclose• its
                    superpriority lien. Since SHHOA foreclosed nonjudicially, the district
                    court reasoned, U.S. Bank's first deed of trust survived the SHHOA
                    trustee's sale and was senior to the trustee's deed SFR received.
                                SFR appealed. The district court stayed U.S. Bank's trustee's
                    sale pending decision of this appeal.


                                                            A.
                                The HOA lien statute, NRS 116.3116, is a creature of the
                    Uniform Common Interest Ownership Act of 1982, § 3-116, 7 U.L.A., part
                    11 121-24 (2009) (amended 1994, 2008) (UCIOA), which Nevada adopted in
                    1991, 1991 Nev. Stat., ch. 245, § 1-128, at 535-79, and codified as NRS
                    Chapter 116, See NRS 116.001. One purpose of adopting a Uniform Act
                    like the UCIOA is "to make uniform the law with respect to [its] subject
                    [matter] among states enacting it." NRS 116.1109(2). Thus, in addition to
                    the usual tools of statutory construction, we have available the comments
                    of the National Conference of Commissioners on Uniform State Laws,
                    national commentary, and other states' cases to explicate NRS Chapter
                    116. 2A Norman J. Singer & Shambie Singer, Sutherland Statutory
                    Construction § 48:11, at 603-08 (7th ed. 2014); see Casey v. Wells Fargo
                    Bank, NA., 128 Nev. 290 P.3d 265, 268 (2012).

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                               NRS 116.3116(1) gives an HOA a lien on its homeowners'
                   residences—the UCIOA calls them "units," see NRS 116.093—"for any
                   construction penalty that is imposed against the unit's owner. . , any
                   assessment levied against that unit or any fines imposed against the unit's
                   owner from the time the construction penalty, assessment or fine becomes
                   due." NRS 116.3116(2) elevates the priority of the HOA lien over other
                   liens. It states that the HOA's lien is "prior to all other liens and
                   encumbrances on a unit" except for:
                                      (a) Liens and encumbrances recorded before
                                the recordation of the declaration [creating the
                                common-interest community] .
                                     (b) A first security interest on the unit
                                recorded before the date on which the assessment
                                sought to be enforced became delinquent ; and
                                       (c) Liens for real estate taxes and other
                                governmental assessments or charges against the
                                unit or cooperative.
                   NRS 116.3116(2) (emphasis added). If subsection 2 ended there, a first
                   deed of trust would have complete priority over an HOA lien. But it goes
                   on to carve out a partial exception to subparagraph (2)(b)'s exception for
                   first security interests:
                                The [1-10A] lien is also prior to all security
                                interests described in paragraph (b) to the extent
                                of any [maintenance and nuisance - abatement]
                                charges incurred by the association on a unit
                                pursuant to NRS 116.310312 and to the extent of
                                the assessments for common expenses [i.e., HOA
                                dues] based on the periodic budget adopted by the
                                association pursuant to NRS 116.3115 which
                                would have become due in the absence of
                                acceleration during the 9 months immediately
                                preceding institution of an action to enforce the
                                lien, unless federal regulations adopted by the
                                Federal Home Loan Mortgage Corporation or the
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                            Federal National Mortgage Association require a
                            shorter period of priority for the lien. . . . This
                            subsection does not affect the priority of
                            mechanics' or materialmen's liens, or the priority
                               of liens for other assessments made by the
                               association.
                 NRS 116.3116(2) (emphases added). 1
                             As to first deeds of trust, NRS 116.3116(2) thus splits an HOA
                 lien into two pieces, a superpriority piece and a subpriority piece. The
                 superpriority piece, consisting of the last nine months of unpaid HOA dues
                 and maintenance and nuisance-abatement charges, is "prior to" a first
                 deed of trust. The subpriority piece, consisting of all other HOA fees or
                 assessments, is subordinate to a first deed of trust.
                            NRS 116.3116 largely tracks section 3-116(a)-(0 of the 1982
                 UCIOA. 2 But it does not use the language in subsections (j) and (k) of
                 UCIOA § 3-116, which offer alternative HOA lien foreclosure provisions
                 for adaptation to local law.     See 1982 UCIOA § 3116(j)(1) ("In a
                 condominium or planned community, the association's lien must be

                      FUCIOA § 3-116 differs from NRS 116.3116(1) in that it limits the
                 superpriority to six rather than nine months of unpaid dues, does not
                 make provision for Federal Home Loan Mortgage Corporation and Federal
                 National Mortgage Association regulations, and does not include
                 maintenance and nuisance-abatement charges in the superpriority lien.
                       2 NRS  116.3116(3) was added in 2013, 2013 Nev. Stat., ch. 552, § 7,
                 at 3788, and is unique. NRS 116.3116(11) was added in 2011, 2011 Nev.
                 Stat., ch. 389, § 49, at 2450 (renumbered from subsection 10 to 11 by 2013
                 Nev. Stat., ch. 552, §7 at 3789), and replicates subparagraph (I) of the
                 1994 version and subparagraph (m) of the 2008 version of the UCIOA. See
                 UCIOA § 3-116(m) (2008), 7 U.L.A., part IB 377 (2009); UCIOA § 3-1160
                 (1994), 7 U.L.A., part IB 571-72 (2009). See note 1 above for additional
                 variations.


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                      foreclosed in like manner as a mortgage on real estate [or by power of sale
                      under [insert appropriate state statutell.");    id. § 3 - 116(k) (offering an
                      optional fast-track foreclosure method for cooperatives, which often carry
                      substantial debt service obligations). Instead, the Nevada Legislature
                      handcrafted a series of provisions to govern HOA lien foreclosures, NRS
                      116.31162 through NRS 116.31168, and refashioned 1982 UCIOA §§ 3 -
                      116(j)(2) and (3), concerning cooperatives, as NRS 116.3116(10).
                                  To initiate foreclosure under NRS 116.31162 through NRS
                      116.31168, a Nevada BOA must notify the owner of the delinquent
                      assessments. NRS 116.31162(1)(a). If the owner does not pay within 30
                      days, the HOA may record a notice of default and election to sell. NRS
                      116.31162(1)(b). Where the UCIOA states general third-party notice
                      requirements, see 1982 UCIOA § 3 - 1160(4) ("In the case of foreclosure
                      under [insert reference to state power of sale statute], the association shall
                      give reasonable notice of its action to all lien holders of the unit whose
                      interest would be affected."), NRS 116.31168 imposes specific timing and
                      notice requirements.
                                  "The provisions of NRS 107.090," governing notice to junior
                      lienholders and others in deed - of-trust foreclosure sales, "apply to the
                      foreclosure of an association's lien as if a deed of trust were being
                      foreclosed." NRS 116.31168(1). The HOA must provide the homeowner
                      notice of default and election to sell; it also must notify "[e]ach person who
                      has requested notice pursuant to NRS 107.090 or 116.31168" and "rainy
                      holder of a recorded security interest encumbering the unit's owner's
                      interest who has notified the association, 30 days before the recordation of
                      the notice of default, of the existence of the security interest." NRS
                      116.31163(1), (2). The homeowner must be given at least 90 days to pay

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                off the lien. NRS 116.31162. If the lien is not paid off, then the BOA may
                proceed to foreclosure sale. Id. Before doing so, the BOA must give notice
                of the sale to the owner and to the holder of a recorded security interest if
                the security interest holder "has notified the association, before the
                mailing of the notice of sale of the existence of the security interest." NRS
                116.311635(1)(b)(2); see NRS 107.090(3)(b), (4) (requiring notice of default
                and notice of sale to "klach other person with an interest whose interest
                or claimed interest is subordinate to the deed of trust").
                            NRS 116.31164 addresses the procedure for sale upon
                foreclosure of an BOA lien and specifies the distribution order for the
                proceeds of sale. A trustee's deed reciting compliance with the notice
                provisions of NRS 116.31162 through NRS 116.31168 "is conclusive" as to
                the recitals "against the unit's former owner, his or her heirs and assigns,
                and all other persons." NRS 116.31166(2). And, "Wile sale of a unit
                pursuant to NRS 116.31162, 116.31163 and 116.31164 vests in the
                purchaser the title of the unit's owner without equity or right of
                redemption." NRS 116.31166(3).
                                                      B.
                            U.S. Bank maintains that NRS 116.3116(2) merely creates a
                payment priority as between the HOA and the beneficiary of the first deed
                of trust. If so, then the dues and maintenance and nuisance - abatement
                piece of the HOA lien does not acquire superpriority status until the
                beneficiary of the first deed of trust forecloses, at which point, to obtain
                clear, insurable title, the foreclosure-sale buyer would have to pay off that
                piece of the BOA lien. But if the superpriority piece is a true priority lien,
                then it is senior to the first deed of trust. As such, it can be foreclosed and
                its foreclosure will extinguish the first deed of trust.             See, e.g.,
                Restatement (Third) of Prop.: Mortgages § 7.1 (1997) ("A valid foreclosure
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                of a mortgage terminates all interests in the foreclosed real estate that are
                junior to the mortgage being foreclosed and whose holders are properly
                joined or notified under applicable law.").
                            Nevada's state and federal district courts are divided on
                whether NRS 116.3116 establishes a true priority lien.         Compare 7912
                Li mbwood Court Trust v. Wells Fargo Bank, NA., 979 F. Supp. 2d 1142,
                1149 (D. Nev. 2013) ("[A] foreclosure sale on the HOA super priority lien
                extinguishes all junior interests, including the first deed of trust"),   Cape
                Jasmine Court Trust v. Cent. Mortg. Co., No. 2:13-CV-1125-APG-CWH,
                2014 WL 1305015, at *4 (D. Nev.,Mar 31, 2014) (same), and First 100.
                LLC v. Burns, No. A677693 (8th Jud. Dist. Ct. May 31, 2013) (order
                denying motion to dismiss) (same), with Bayview Loan Servicing, LLC v.
                Alessi & Koenig LLC, 962 F. Supp. 2d 1222, 1225 (D. Nev. 2013) ("The
                super -priority amount is senior to an earlier-recorded first mortgage in the
                sense that it must be satisfied before a first mortgage upon its own
                foreclosure, but it is in parity with an earlier-recorded first mortgage with
                respect to extinguishment, i.e., the foreclosure of neither extinguishes the
                other.") (emphasis in original); Weeping Hollow Ave. Trust v. Spencer,     No.

                2:13-CV-00544-JCM-VCF, 2013 WL 2296313, at *6 (D. Nev. May 24, 2013)
                (same), and Diakonos Holdings; LLC v. Countrywide Home Loans, Inc.,
                No. 2:12-CV-00949-KJD-RJJ, 2013 WL 531092, at *3 (D. Nev. Feb. 11,
                2013) (similar).
                             Textually, NRS 116.3116 supports the           Limbwood, Cape
                Jasmine, and First 100 view that it establishes a true priority lien. NRS
                116.3116(2) does not speak in terms of payment priorities. It states that
                the HOA "lien ... is prior to" other liens and encumbrances "except . [a]
                first security interest," then adds that, "The lien is also prior to [first]

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                   security interests" to the extent of nine months of unpaid HOA dues and
                   maintenance and nuisance-abatement charges.           Ibid. (emphases added).
                   "Prior" refers to the lien, not payment or proceeds, and is used the same
                   way in both sentences, a point the phrase "also prior to" drives home. And
                   "priority lien" and "prior lien" mean the same thing, according to Black's
                   Law Dictionary 1008 (9th ed. 2009): "A lien that is superior to one or more
                   other liens on the same property, usu. because it was perfected first."
                               The official comments to UCIOA § 3-116 confirm its text.
                   Payment priority proponents insist that the statute cannot mean what it
                   says because the result—a split lien, a piece of which has priority over a
                   first deed of trust—is unprecedented.       Cf. Bayview Loan Servicing, 962 F.
                   Supp. 2d at 1226 (observing that, "the real estate community in Nevada
                   clearly understands the statutes to work the way the Court finds," that is
                   to say, as establishing only a payment priority). But the official comments
                   to UCIOA § 3-116 forthrightly acknowledge that the split - lien approach
                   represents a "significant departure from existing practice." 1982 UCIOA §
                   3-116 cmt. 1; 1994 & 2008 UCIOA § 3-116 cmt. 2. It is a specially devised
                   mechanism designed to "strike[] an equitable balance between the need to
                   enforce collection of unpaid assessments and the obvious necessity for
                   protecting the priority of the security interests of lenders."       Id.   The

                   comments continue: "As a practical matter, secured lenders will most
                   likely pay the 6 [in Nevada, nine, see supra note ii months' assessments
                   demanded by the association rather than having the association lbreclose
                   on the unit." Id. (emphasis added). If the superpriority piece of the HOA
                   lien just established a payment priority, the reference to a first security




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                 holder paying off the superpriority piece of the lien to stave off foreclosure
                 would make no sense. 3
                                "An official comment written by the drafters of a statute and
                 available to a legislature before the statute is enacted has considerable
                 weight as an aid to statutory construction."       Acierno v. Worthy Bros.
                 Pipeline Corp., 656 A.2d 1085, 1090 (Del. 1995). The comments to the
                 1982 UCIOA were available to the 1991 Legislature when it enacted NRS
                 Chapter 116. Even though the comments emphasize that the split-lien
                 approach is "[a] significant departure from existing practice," 1982 UCIOA
                 § 3-116 cmt. 1, the Legislature enacted NRS 116.3116(2) with UCIOA § 3 -
                 116's superpriority provision intact. From this it follows that, however
                 unconventional, the superpriority piece of the HOA lien carries true
                 priority over a first deed of trust.
                                The Uniform Law Commission (ULC) has established a joint
                 Editorial Board for Uniform Real Property Acts (JEB), made up of
                 members from the ULC; the ABA Section of Real Property, Probate and
                 Trust Law; and the American College of Real Estate Lawyers, which
                 "is responsible for monitoring all uniform real property acts," of which
                  the UCIOA is one, http://www.uniformlawcommission.com/Committee .
                 aspx?title=Joint Editorial Board for Uniform Real Property Acts. The
                 JEB's 2013 report entitled, The Sir -Month "Limited Priority Lien" fbr
                 Association Fees Under the Uniform Common Interest Ownership Act,

                        3 Thelion's share of most HOA liens will be the unpaid dues, which
                 have superpriority status. This does not make NRS 116,3116(2)(b)
                 superfluous as U.S. Bank suggests, citing Bayview Loan Servicing, 962 F.
                 Supp. 2d at 1227. It simply reflects the policy choices underlying the
                 statute as structured.



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                also supports that § 3-116(b) establishes a true priority lien. 4 Addressing
                the recent foreclosure crisis and the incentives the crisis created for first
                security holders to strategically delay foreclosure, this report canvasses
                the case law construing the UCIOA's superpriority lien. It endorses the
                decision in Summerhill Village Homeowners Ass'n        V.   Roughley, 289 P.3d
                645, 647-48 (Wash. Ct. App. 2012), which, addressing a statute using the
                same superpriority language as NRS 116.3116(2), holds that an HOA's
                judicial foreclosure of the superpriority piece of its lien extinguished the
                first deed of trust. JEB, The Six-Month "Limited Priority Lien," at 8-9.
                The report then criticizes by name two of the three Nevada federal district
                court cases cited above as being on the payment-priority side of the NRS
                116.3116(2) split— Weeping Hollow and Diakonas—saying they "misread
                and misinterpret the Uniform Laws limited priority lien provision,


                      4 The dissent dismisses the work of the ULC JEB as "post-hoc
                commentary" that is "not persuasive" with respect to the judicial v.
                nonjudicial foreclosure issue addressed in Section II.C, infra. These
                observations mistake our reliance on the 2013 ULC JEB report for
                guidance as a legislative-intent analysis, which it is not—the "intent" of
                the 1991 Legislature that adopted the 1982 UCIOA could hardly be
                affected by comments 20+ years in the future. Courts often rely on post
                enactment ULC Editorial Board commentary as persuasive, though not
                mandatory, precedent; doing so here is consistent with the mandate that
                we interpret the UCIOA, like other Uniform Acts, "to make uniform the
                law with respect to the subject of [the act] among states enacting it." NRS
                116.1109(2); e.g., Chase Plaza Condo. Assn v. JEMorgan Chase Bank,
                NA.,      A.3d „ 2014 WL 4250949, at *10 n.5 (D.C. Aug 28, 2014)
                (relying on the ULC JEB report cited in the text as persuasive authority);
                Export-Import Bank of United States v. Asia Pulp & Paper Co., 609 F.3d
                111, 119-20 & 119 n.8 (2d Cir. 2010) (consulting post -enactment
                commentary by the ULC's Permanent Editorial Board for the Uniform
                Commercial Code (UCC) in interpreting a particular UCC provision).



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                    which . . constitutes a true lien priority, [such that] the association's
                    proper enforcement of its lien . extinguish[es] the otherwise senior
                    mortgage lien." Id. at 10 n.9.
                                   The comments liken the HOA lien to "other inchoate liens
                    such as real estate taxes and mechanics liens." 1994 & 2008 UCIOA § 3 -
                    116 cmt. 1. An HOA's "sources of revenues are usually limited to common
                    assessments." JEB, The Six-Month limited Priority Lien," at 4. This
                    makes an HOA's ability to foreclose on the unpaid dues portion of its lien
                    essential for common-interest communities. Id. at 1-2. Otherwise, when a
                    homeowner walks away from the property and the first deed of trust
                    holder delays foreclosure, the HOA has to "either increase the assessment
                    burden on the remaining unit/parcel owners or reduce the services the
                    association provides (e.g., by deferring maintenance on common
                    amenities)."     Id. at 5-6. To avoid having the community subsidize first
                    security holders who delay foreclosure, whether strategically or for some
                    other reason, UCIOA § 3-116 creates a true superpriority lien:
                                   A foreclosure sale of the association's lien
                                   (whether judicial or nonjudicial) is governed by the
                                   principles generally applicable to lien foreclosure
                                   sales, i.e., a foreclosure sale of a lien entitled to
                                   priority extinguishes that lien and any
                                   subordinate liens, transferring those liens to the
                                   sale proceeds. Nothing in the Uniform Laws
                                   establishes (or was intended to establish) a
                                   contrary result.
                    Id. at 9 (footnotes omitted); accord Memorandum from the JEB to the
                    Comm'rs for the Unif. Law Comm'n 3 (June 11, 2014) (noting that, "[a]s
                    originally drafted, § 3116(c) was intended to create a true lien priority,
                    and thus the association's foreclosure properly should be viewed as
                    extinguishing the lien of the otherwise first mortgagee (to the same extent

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                that foreclosure of a real estate tax lien would extinguish that same
                mortgage)," citing 7912 Limbwood Court Trust, 979 F. Supp. 2d at 1149).
                             U.S. Bank's final objection is that it makes little sense and is
                unfair to allow a relatively nominal lien—nine months of HOA dues—to
                extinguish a first deed of trust securing hundreds of thousands of dollars
                of debt. But as a junior lienholder, U.S. Bank could have paid off the
                SHHOA lien to avert loss of its security; it also could have established an
                escrow for SHHOA assessments to avoid having to use its own funds to
                pay delinquent dues. 1982 UCIOA § 3-116 cmt. 1; 1994 & 2008 UCIOA §
                3-116 cmt. 2. The inequity U.S. Bank decries is thus of its own making
                and not a reason to give NRS 116.3116(2) a singular reading at odds with
                its text and the interpretation given it by the authors and editors of the
                UCIOA. See NRS 116.1109 (obligating this court to interpret its version of
                the -LIMA so as to "make uniform the law . . . among states enacting it").
                                                     C.
                            Since NRS 116.3116(2) establishes a true superpriority lien,
                the next question we must decide is whether the lien may be foreclosed
                nonjudicially or requires judicial foreclosure. NRS Chapter 116 answers
                this question directly: An HOA may foreclose its lien by nonjudicial
                foreclosure sale. Thus, NRS 116.3116(1) defines what an HOA lien covers,
                while NRS 116.31162(1) states that "in a planned conimunity"—a
                "planned community" is any type of "common-interest community that is
                not a condominium or a cooperative," NRS 116.075—"the association may
                foreclose its lien by sale." To "foreclose [a] lien by sale" under NRS
                116.31162(1) encompasses an HOA's conducting a nonjudicial foreclosure
                sale. This is evident from the remainder of NRS 116.31162, which speaks
                to the statutory notices of delinquency, default and election to sell
                required of a nonjudicial foreclosure sale, and the sections that follow,
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                    NRS 116.31163 through NIPS 116.31168, all of which concern the
                    mechanics and requirements of nonjudicial foreclosure sales of HOA liens.
                    The only limits Chapter 116 places on HOA lien foreclosure sales appear
                    in NRS 116.31162(5) and (6), which restrict foreclosure of HOA liens for
                    certain fines and penalties and liens on homes in Nevada's foreclosure
                    mediation program (FMP). See also State v. Javier C., 128 Nev. , .
                    289 P.3d 1194, 1197 (2012) ("Nevada follows the maxim `expressio unius
                    est exclusio alterius,' the expression of one thing is the exclusion of
                    another."). Given this statutory text, we cannot agree with our dissenting
                    colleagues that NRS Chapter 116 requires judicial foreclosure of the
                    superpriority piece of an HOA lien but authorizes nonjudicial foreclosure
                    of everything else.
                                Together, NRS 116.3116(1) and NRS 116.31162 provide for the
                    nonjudicial foreclosure of the whole of an HOA's lien, not just the
                    subpriority piece of it. U.S. Bank and our dissenting colleagues do not
                    come to terms with NRS 116.31162. Instead, they focus on a single phrase
                    in NRS 116.3116(2) which defines the superpriority piece of the lien as
                    comprising "assessments for common expenses . .. which would have
                    become due in the absence of acceleration during the 9 months
                    immediately preceding institution of an action to enforce the lien."
                    (Emphasis added.) Not acknowledging that NRS 116.3116(2) only
                    discusses lien priority, not foreclosure methods, they maintain that the
                    phrase "institution of an action to enforce the lien" suggests a civil action,
                    a lawsuit brought in a court of law. But the phrase is not so narrow that it
                    excludes nonjudicial foreclosure proceedings.    Black's Law Dictionary 869
                    (9th ed. 2009) defines "institution" as "Hhe commencement of something,
                    such as a civil or criminal action." (Emphasis added.) As Black's

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                 recognizes, "foreclosure" Proceedings are "instituted" and include both
                 "judicial foreclosure" and "nonjudicial foreclosure" methods.       Id. at 719
                 (defining "foreclosure," "judicial foreclosure," and "nonjudicial" or "power -
                 of- sale foreclosure"). And in the context of foreclosures, "action" appears to
                 be commonly used in connection with nonjudicial as well as judicial
                 foreclosures. See In re Bonner Mall P'ship, 2 F.3d 899, 902 (9th Cir. 1993)
                 (referring to a bank "commending] a nonjudical foreclosure action");
                 Santiago v. BAG Home Loans Servicing, LP,               F. Supp. 2d ,

                 2014 WL 2075994, at *3 (W.D. Tex. 2014) (holding an assignee to be "an
                 appropriate party to initiate a nonjudicial foreclosure action against the
                 Property"); In re Beach, 447 B.R. 313, 316 (D. Idaho 2011) ("[T]he Bank
                 initiated a nonjudicial foreclosure action . . . ."); Bowmer v. Dettelbach, 672
                 N.E.2d 1081, 1086 (Ohio Ct. App. 1996) (discussing a "nonjudicial
                 foreclosure action . instituted" in California); Klem v. Wash. Mut. Bank,
                 295 P.3d 1179, 1189 (Wash. 2013) (addressing the powers of the trustee in
                 "a nonjudicial foreclosure action").
                              The argument that NRS 116.3116(2)'s use of the word action"
                 means "that an HOA must foreclose judicially to invoke the superpriority'
                 lien provision was considered and rejected in Nation star Mortgage, LLC v.
                 Rob and Robbie, LLC, No. 2:13-cv-01241-RCJ-PAL, 2014 WL 3661398, at
                 *4 (D. Nev. July 23, 2014). The court gave "two independent reasons" for
                 its holding. "First, 'action' does not include only civil actions. The
                 Legislature could easily have said 'civil action' or 'judicial action,' but it
                 used the broader term 'action.' Id. In the lien foreclosure context, "where
                 the statutes. . . provide for either judicial or non judicial foreclosure,




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                'action' is most reasonably read to include either." /d 5 Second, NRS
                116.3116(2) does not "use the word 'action' in a way that makes the super-
                priority status depend[e]nt upon whether an 'action' has been instituted.
                Rather, the word 'action' is used (in the subjunctive mode, not the
                indicative mode) as a way to measure the portion of an HOA lien that has
                super -priority status." Id.
                             UCIOA § 3-116(b) uses the phrase institution of an action to
                enforce the lien" in describing the superpriority lien, exactly as NRS
                116.3116(2) does. Section 3 - 116(j) of the 1982 and 1994 UCIOA (and with
                minor alteration, section 3-116(k) of the 2008 UCIOA) prompt the
                adopting state to choose and insert its authorized foreclosure method, be it
                judicial or nonjudicial:
                             (j) The association's lien may be foreclosed as
                             provided in this subsection:
                                   (1) In a condominium or planned
                                   community, the association's lien must be
                                   foreclosed in like manner as a mortgage on
                                   real estate [or by power of sale under [insert
                                   appropriate state statute]];
                                   (2) In a cooperative whose unit owners'
                                   interests in the units are real estate (Section
                                   1 - 105), the association's lien must be


                      5 We  recognize that NRS 116.3116 uses "action" to signify civil action
                in NRS 116.3116(8) (a "judgment or decree in any action brought under
                this section must include costs and reasonable attorney's fees") and NRS
                116.3116(11) (authorizing appointment of a receiver "filn an action by an
                association to collect assessments or to foreclose a lien"). But we accept
                that "action" includes civil court actions. The point is that "institution of
                an action to enforce the lien" is not restricted to judicial actions but,
                rather, includes nonjudicial foreclosure actions as well.



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                                  foreclosed in like manner as a mortgage on
                                  real estate for by power of sale under [insert
                                  appropriate state statute]] [or by power of
                                  sale under subsection (k)]; or
                                   (3) In a cooperativeS whose unit owners'
                                   interests in the units are personal property
                                   (Section 1-105), the association's lien must
                                   be foreclosed in like manner as a security
                                   interest under [insert reference to Article 9,
                                   Uniform Commercial Code.]
                                   [(4) In the case of foreclosure under [insert
                                   reference to state power of sale statute], the
                                   association shall give reasonable notice of its
                                   action to all lien holders of the unit whose
                                   interest would be affected.]
                1982 UCIOA § 3-116(j). If the UCIOA meant "institution of an action to
                enforce the lien" in § 3-116(b) to signify that all superpriority II0A lien
                foreclosures must proceed judicially, § 3-116(j)'s repeated references to the
                foreclosure of "the association's lien" by judicial or nonjudicial foreclosure,
                depending on the enacting state's local laws, is inexplicable. And, indeed,
                the Joint Editorial Board for Uniform Real Property Acts has confirmed
                that, in the context of an HOA's superpriority lien specifically, "[a]
                foreclosure sale of the association's lien (whether judicial or noniudici al) is
                governed by the principles generally applicable to lien foreclosure sales,
                i.e., a foreclosure sale of a lien entitled to priority extinguishes that lien
                and any subordinate liens." JEB, The Six-Month 'Limited Priority Lien."
                at 9 (emphasis added) (footnote omitted).
                            Nevada did not enact subsection (j) of § 3-116. Instead, it
                enacted a series of separate, consecutively numbered statutes, NRS
                116.31162 through NRS 116.31168, each addressing a specific aspect of
                the nonjudicial foreclosure process NRS 116.31162 authorizes for HOA
                liens. These statutes use "enforce" throughout with reference to an HOA's
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                     nonjudicial foreclosure of its lien. See NRS 116.31162(1)(b)(2) (the notice
                     of delinquent assessment must identify "the person authorized by the
                     association to enforce the lien by sale"); NRS 116.31162(1)(c); NRS
                     116.31164(2) (discussing costs, fees, and expenses incident to an HOA's
                     nonjudicial "enforcement of its lien"). Nothing in these statutes suggests
                     that, by adopting them in lieu of the more abbreviated § 3116(j). Nevada
                     was sub silentio rejecting the UCIOA's use of "institution of an action to
                     enforce the lien" as applying to either judicial or nonjudicial foreclosures—
                     much less distinguishing, though without saying so, between the
                     subpriority piece of an HOA's lien, to which the nonjudicial foreclosure
                     procedures detailed in NRS 116.31162 through NRS 116.31168 would
                     apply, and the superpriority piece of an HOA's lien, which would require a
                     judicial foreclosure proceeding not actually mentioned in Chapter 116. If
                     anything, Nevada's elaborate nonjudicial foreclosure provisions signal the
                     Legislature's•embrace of nonjudicial foreclosure of HOA liens, not the
                     opposite.
                                 Recall that, unlike § 3-116(b), which currently limits the
                     superpriority piece of an HOA's lien to six months of unpaid dues,
                     Nevada's superpriority lien covers nine months of dues as well as
                     maintenance and nuisance-abatement charges "incurred . . . pursuant to
                     NRS 116.310312." NRS 116.3116(2); see supra note 1. Addressing
                     maintenance and nuisance - abatement charges, NRS 116.310312(4)
                     expressly cross-references Chapter 116's nonjudicial foreclosure
                     provisions, stating that "R]he lien may be foreclosed under NRS 116.31162
                     to 116.31168, inclusive." The maintenance and nuisance-abatement
                     statute borrows the phrase "institution of an action to enforce the lien"
                     from NRS 116.3116 in explaining that even if federal law requires a

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                      shorter period of priority, "the period of priority of the lien must not be
                      less than the 6 months immediately preceding the institution of an action
                      to enforce the lien." NRS 116.310312(6). This phrasing is underinclusive
                      and beyond confusing unless read to encompass judicial and nonjudicial
                      foreclosures alike, both in NRS 116.310312(6) and in its statute of origin,
                      NRS 116.3116(2).
                                  The Nevada Real Estate Division of the Department of
                      Business and Industry (NRED) is charged with administering Chapter
                      116. NRS 116.615; see State, Dep't of Bus. & Indus. v. Nev. Ass'n Servs.,
                      Inc., 128 Nev. , 294 P.3d 1223, 1227-28 (2012). NRS 116.623(1)(a)
                      tasks NRED with issuing "advisory opinions as to the applicability or
                      interpretation of ... [a]ny provision of this chapter." On December 12,
                      2012, NRED issued Advisory Opinion No. 13-01. The opinion addresses,
                      among other questions, whether NRS 116.3116(2) requires a civil action
                      by an HOA to foreclose the superpriority piece of its lien. NRED opines
                      that it does not: "The association is not required to institute a civil action
                      in court to trigger the 9 month look back provided in NRS 116.3116(2)."
                      13 - 01 Op. Dep't of Bus. & Indus., Real Estate Div. 18 (2012). Elaborating,
                      the NRED opinion states, "NRS 116 does not require an association to
                      take any particular action to enforce its lien, but [only] that it institutes
                      an action," which includes the HOA taking action under NRS 116.31162
                      to initiate the nonjudicial foreclosure process.      Id. at 17-18. NRED's
                      interpretation is persuasive, as it comports with both the statutory text
                      and the JEB's interpretation of the UCIOA.      See Int'l Game Tech., Inc. v.
                      Second Judicial Dist. Court, 122 Nev. 132, 157, 127 P.3d 1088, 1106
                      (2006).



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                             U.S. Bank and the dissent argue that judicial foreclosure
                 should be required as a matter of policy because of the safeguards it
                 offers—notice and an opportunity to be heard, court supervision of the
                 sale, judicial review of the amount of the lien comprising the superpriority
                 piece, and a one-year redemption period.         See NRS 40.430-.463; NRS
                 21.190- .210. But this argument assumes that requiring the superpriority
                 piece of an HOA lien to be judicially foreclosed will actually afford such
                 protections without need of further amendment to Chapter 116, and this is
                 far from clear. To allow nonjudicial foreclosure of the subpriority piece,
                 which is where the dissent would draw the judicial v. nonjudicial
                 foreclosure line, produces the same difficulties for the homeowners and
                 junior lienholders that are cited as policy reasons for requiring judicial
                 foreclosure of the superpriority piece of the lien; the only difference is the
                 benefit that would inure to first security holders under the dissent's
                 interpretation of Chapter 116. Surely, if the Legislature intended such an
                 unusual distinction, it would have said so explicitly, but it did not.
                             We recognize that "there has been considerable publicity
                 across the country regarding alleged abuse in the foreclosure process when
                 unit owners fail to pay sums due" their HOA, prompting amendments to
                 the UCIOA that "propose ] new and considerable restrictions on the
                 foreclosure process as it applies to common interest communities. -
                 Prefatory Note to the 2008 Amendments to the UCIOA,          7 U.L.A.. part IB,

                 at 225 (2009). But the choice of foreclosure method for HOA liens is the
                 Legislature's, and the Nevada Legislature has written NRS Chapter 116
                 to allow nonjudicial foreclosure of HOA liens, subject to the special notice
                 requirements and protections handcrafted by the Legislature in NRS
                 116.31162 through NRS 116.31168. Countervailing policy arguments

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                      exist in favor of allowing nonjudicial foreclosure, including that judicial
                      foreclosure takes longer to accom.plish, thereby delaying the common-
                      interest community's receipt of needed HOA funds. The consequences of
                      such delays can be "devastating to the community and the remaining
                      residents," who must either make up the dues deficiencies, arguably
                      unjustly enriching the delaying lender, or abandon amenities and
                      maintenance, thereby impairing the value of their homes.      JEB, The Sir
                      Month "Limited Priority Lien," at 4-5. If revisions to the foreclosure
                      methods provided for in NRS Chapter 116 are appropriate, they are for
                      the Legislature to craft, not this court.
                                                             D.
                                   U.S. Bank makes two additional arguments that merit brief
                      discussion. First, the lender contends that the nonjudicial foreclosure in
                      this case violated its due process rights. Second, it invokes the mortgage
                      savings clause in the Southern Highlands CC&Rs, arguing that this
                      clause subordinates SHHOA's lien to the first deed of trust. Neither
                      argument holds up to analysis.
                                                              1.
                                   SFR is appealing the dismissal of its complaint for failure to
                      state a claim upon which relief can be granted. NRCP 12(b)(5). The
                      complaint alleges that "the HOA foreclosure sale complied with all
                      requirements of law, including but not limited to, recording and mailing of
                      copies of Notice of Delinquent Assessment and Notice of Default, and the
                      recording, posting and publication of the Notice of Sale." It further alleges
                      that, "prior to the HOA foreclosure sale, no individual or entity paid the
                      super-priority portion of the HOA Lien representing 9 months of
                      assessments for common expenses." In view of the fact that the
                      ‘`requirements of law" include compliance with NRS 116131162 through
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                       NRS 116.31168 and, by incorporation, NRS 107.090,                    see   NRS

                       116.31168(1), we conclude that U.S. Bank's due process challenge to the
                       lack of adequate notice fails, at least at this early stage in the proceeding.°
                                   The contours of U.S. Bank's due process argument are
                       protean. To the extent U.S. Bank argues that a statutory scheme that
                       gives an HOA a superpriority lien that can be foreclosed nonjudicially,
                       thereby extinguishing an earlier filed deed of trust, offends due process,
                       the argument is a nonstarter. As discussed in 7912 Limbwood Court
                       Trust, 979 F. Supp. 2d at 1152:
                                    Chapter 116 was enacted in 1991, and thus [the
                                    lender] was on notice that by operation of the
                                    statute, the [earlier recorded] CC&Rs might
                                    entitle the HOA to a super priority lien at some
                                    future date which would take priority over a [later
                                    recorded] first deed of trust. . . Consequently,
                                    the conclusion that foreclosure on an HOA super
                                    priority lien extinguishes all junior liens,
                                    including a first deed of trust recorded prior to a
                                    notice of delinquent assessments, does not violate
                                    [the lender's] due process rights.
                       Accord Nationstar Mtg., 2014 WL 3661398, at *3 (rejecting a due process
                       challenge to nonjudicial foreclosure of a superpriority lien).
                                    U.S. Bank further complains about the content of the notice it
                       received. It argues that due process requires specific notice indicating the

                             °On a motion to dismiss, a court must take all factual allegations in
                       the complaint as true and not delve into matters asserted defensively that
                       are not apparent from the face of the complaint. See Buzz Stew, LLC v.
                       City of N Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008).
                       Consistent with this standard, we note but do not resolve U.S. Bank's
                       suggestion that we could affirm by deeming SFR's purchase "void as
                       commercially unreasonable."



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                      amount of the superpriority piece of the lien and explaining how the
                      beneficiary of the first deed of trust can• prevent the superpriority
                      foreclosure sale. But it appears from the record that specific lien amounts
                      were stated in the notices, ranging from $1,149.24 when the notice of
                      delinquency was recorded to $4,542.06 when the notice of sale was sent.
                      The notices went to the homeowner and other junior lienholders, not just
                      U.S. Bank, so it was appropriate to state the total amount of the lien. As
                      U.S. Bank argues elsewhere, dues will typically comprise most, perhaps
                      even all, of the HOA lien.   See supra note 3. And from what little the
                      record contains, nothing appears to have stopped U.S. Bank from
                      determining the precise superpriority amount in advance of the sale or
                      paying the entire amount and requesting a refund of the balance.    Cf. In re
                      Medaglia, 52 F.3d 451, 455 (2d Cir. 1995) ("Mt is well established that due
                      process is not offended by requiring a person with actual, timely
                      knowledge of an event that may affect a right to exercise due diligence and
                      take necessary steps to preserve that right."). On this record, at the
                      pleadings stage, we credit the allegations of the complaint that SFR
                      provided all statutorily required notices as true and sufficient to
                      withstand a motion to dismiss.    See 7912 Limbwood Court Trust, 979 F.
                      Supp. 2d at 1152-53.
                                                           2.
                                  U.S. Bank last argues that, even if NRS 116.3116(2) allows
                      nonjudicial foreclosure of a superpriority lien, the mortgage savings clause
                      in the Southern Highlands CC&Rs subordinated SSHOA's superpriority
                      lien to the first deed of trust. The mortgage savings clause states that "no
                      lien created under this Article 9 [governing nonpayment of assessments],
                      nor the enforcement of any provision of this Declaration shall defeat or
                      render invalid the rights of the beneficiary under any Recorded first deed
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                 of trust encumbering a Unit, made in good faith and for value." It also
                 states that "Mlle lien of the assessments, including interest and costs,
                 shall be subordinate to the lien of any first Mortgage upon the Unit."
                             NRS 116.1104 defeats this argument. It states that Chapter
                 116's "provisions may not be varied by agreement, and rights conferred by
                 it may not be waived . . . [e]xcept as expressly provided in" Chapter 116.
                 (Emphasis added.) "Nothing in [NRS] 116.3116 expressly provides for a
                 waiver of the HOA's right to a priority position for the HOA's super
                 priority lien." See 7912 Li mbwood Court Trust, 979 F. Supp. 2d at 1153.
                 The mortgage savings clause thus does not affect NRS 116.3116(2)'s
                 application in this case. 7 See Boulder Oaks Cmty. Ass'n v. B & J Andrews
                 Enters., LLC, 125 Nev. 397, 407, 215 P.3d 27, 34 (2009) (holding that a
                 CC&Rs clause that created a statutorily prohibited voting class was void
                 and unenforceable).


                             NRS 116.3116(2) gives an HOA a true superpriority lien,
                 proper foreclosure of which will extinguish a first deed of trust, Because
                 Chapter 116 permits nonjudicial foreclosure of HOA liens, and because

                       7 Coral   Lakes Community Assn v. Busey Bank, NA.,     30 So. 3d 579
                 (Fla. Dist. Ct. App. 2010), on which U.S. Bank relies, does not suggest a
                 different result. The CC&Rs that contained the subordination clause in
                 Coral Lakes were in place before the statute that limited the ability to
                 subrogate association liens took effect. Id at 581-84 & 582 n.3. The court
                 refused to enforce the statute because disturbing the prior, contractual
                 relationship "would implicate constitutional concerns about impairment of
                 vested contractual rights." Id. at 584. Here, however, the Southern
                 Highlands CC&Rs were recorded after the Legislature adopted and
                 enacted Chapter 116, so no similar concerns about impairment of any
                 party's vested contractual rights arise.



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                SFR's complaint alleges that proper notices were sent and received, we
                reverse the district court's order of dismissal. In view of this holding, we
                vacate the order denying preliminary injunctive relief and remand for
                further proceedings consistent with this opinion


                                                     •




                                                     Pickering
                                                                 6(                J.



                We concur:




                Hardesty


                                                J.
                Douglas


                                                J.
                Saitta




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                      GIBBONS, C.J., with whom PARRAGUIR1{E and CHERRY, ii., agree,
                      concurring in part and dissenting in part:
                                  While I concur with the majority that NRS 116.3116(2)
                      establishes a true superpriority for an HOA's lien, the enforcement of the
                      superpriority portion of the lien requires institution of an action. I would
                      conclude that this statutory language mandates that a civil judicial
                      foreclosure complaint be filed in order to extinguish a first deed of trust.
                      The Legislature's use of the term "action" indicates that a superpriority
                      lienholder must file a judicial foreclosure complaint
                                  The phrase "institution of an action" may not inherently mean
                      the filing of a judicial action.   See Black's Law Dictionary 800 (6th ed.
                      1990) (defining "institution" as title commencement or inauguration of
                      anything, as the commencement of an action"); id. at 28 (defining "action"
                      as "icionduct; behavior; something done; the condition of acting; an act or
                      series of acts"). But when used in "its usual legal sense," "action" means
                      "a lawsuit brought in a court."    Id.; see also BP Am. Prod. Co. v. Burton,
                      549 U.S. 84, 91 (2006) ("The key terms in this provision---'action' and
                      'complaint'—are ordinarily used in connection with judicial, not
                      administrative, proceedings.").
                                  In my view, NRS 116.3116 is using "action" in its usual legal
                      sense. Other subsections in NRS 116.3116 reference concepts specific to
                      judicial proceedings in relation to the word "action." NRS 116.3116(8)
                      states that a "judgment or decree in any action brought under this section
                      must include costs and reasonable attorney's fees for the prevailing party."
                      NRS 116.3116(11) states:
                                   In an action by an association to collect
                                   assessments or to foreclose a lien created under
                                   this section, the court may appoint a receiver to
                                   collect all rents or other income from the unit
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                                alleged to be due and owing to a unit's owner
                                before commencement or during pendency of the
                                action . . . The court may order the receiver to
                                pay any sums• held by the receiver to the
                                association during pendency of the action to the
                                extent of the association's common expense
                                assessments . . . .
                    The way NRS 116.3116 uses action to indicate a court action demonstrates
                    that "institution of an action" means the filing of a judicial proceeding.
                    See Savage v. Pierson, 123 Nev. 86, 94 & n.32, 157 P.3d 697, 702 & n.32
                    (2007) ("[Hf a word is used in different parts of a statute, it will be given
                    the same meaning unless it appears from the whole statute that the
                    Legislature intended to use the word differently.").
                                To be sure, Chapter 116 does not consistently use action" to
                    mean a judicial action.       See, e.g., NRS 116.2119 (the association's
                    declaration may require that the lenders who hold security interests in the
                    units "approve specified actions of the units' owners or the association as a
                    condition to the effectiveness of those actions" but it may not require
                    approval for certain specified nonjudicial "actions"); NRS 116.785(1)
                    (giving the Commission for Common-Interest Communities and
                    Condominium Hotels, if it finds a violation of NRS Chapter 116, the
                    authority to "take any or all of the following actions," and providing
                    various nonjudicial actions). But when Chapter 116 uses a phrase akin to
                    "institution of an action," it signals the filing of an action in court.   See,
                    e.g., NRS 116.2124 (any person holding an interest in a common interest
                    community "may commence an action in the district court" to terminate
                    the community in the event of a catastrophe (emphasis added)); NRS
                    116.31088 (discussing rules for when the association is considering "the
                    commencement of a civil action" (emphasis added)); NRS 116.320(3) ("In
                    any action commenced to enforce the provisions of this section, the
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                 prevailing party is entitled to recover reasonable attorney's fees and
                 costs." (emphasis added)); NRS 116.795(1) (the regulatory agency "may
                 bring an action in . . . any court of competent jurisdiction" to enjoin further
                 continuing violations of Chapter 116 (emphasis added)). The specific
                 phraseology used in NRS 116.3116(2), "institution of an action,"
                 demonstrates that a judicial action, rather than just any enforcement
                 action, was what the Legislature contemplated as the method for
                 extinguishing a first deed of trust.        See also Benson v. Zoning Bd. of
                 Appeals of Town of Westport,       873 A.2d 1017, 1021 - 24 (Conn App. Ct.
                 2005) (concluding that although the phrase "institution of an action" as
                 used in the statute at issue was ambiguous, the phrase had "never been
                 held to mean anything other than the filing of a civil action in court" and
                 that the legislature had not made it clear that other proceedings would
                 suffice)
                              I recognize that Chapter 116 gives the association the option
                 to enforce its lien through nonjudicial foreclosure by following the
                 procedures provided in NRS 116.31162 to 116.31168. The association may
                 even nonjudicially foreclose on its lien for maintenance and abatement
                 charges, charges that may be included in the superpriority portion of the
                 association's lien.   See NRS 116.310312(4). But, as explained, the lien's
                 superpriority is tied to the "institution of an action to enforce the lien."
                 NRS 116.3116(2); NRS 116.310312(6). Thus, I would conclude that while
                 the association has the option to nonjudicially foreclose on its lien, it must
                 foreclose through judicial action in order to trigger the extinguishing effect
                 of the superpriority portion of its lien.




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                       The NRED advisory opinion should not be given deference because it
                       conflicts with NRS 116.3116 .t2is statutory language
                             This conclusion is in disagreement with the agency charged
                 with regulating and administering Chapter 116, the Nevada Department
                 of Business and Industry's Real Estate Division (NRED).               See NRS
                 116.615; NRS 116.623; State, Dept of Bus. & Indus. v. Nev. Ass'n Servs.,
                 Inc., 128 Nev. , 294 P.3d 1223, 1227 (2012). NRED has interpreted
                 "action to enforce the lien" as being met by an association taking action to
                 nonjudicially foreclose on its lien pursuant to NRS 116.31162; thus,
                 according to NRED, an association need not file a civil judicial action to
                 trigger the superpriority portion of the association's lien under NRS
                 116.3116(2). See 13-01 Op. Dep't of Bus. & Indus., Real Estate Div. 17-18
                 (2012).
                             However, only agency interpretations that are within the
                 statutory language are afforded deference, Taylor v. State, Dep't of Health
                 & Human Servs., 129 Nev.              , 314 P.3d 949, 951 (2013), and NRED's
                 interpretation is not within NRS 116.3116's language. Although NRS
                 Chapter 116's statutory scheme allows an association to nonjudicially
                 foreclose on its lien, it must judicially foreclose to trigger the superpriority
                 effect of its lien. See NRS 116.3116(2).
                       The Nevada Legislature intentionally departed from the model code
                       to require institution of a judicial action in NRS 116.3116
                              I also recognize that NRS 116.3116(2)'s proclamation that the
                 association must file a judicial action to trigger the superpriority effect of
                 its lien is at odds with the uniform act upon which the statute was based.
                 The Joint Editorial Board for Uniform Real Property Acts, which counsels
                 the Uniform Law Commission on uniform real estate laws, has stated that
                 an association may foreclose on superpriority portions of its lien and

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                  extinguish the first security "in the manner in which a mortgage is
                  foreclosed"; so, "an association may foreclose its lien by nonjudicial
                  proceedings if the state permits nonjudicial foreclosure." Joint Editorial
                  Board for Uniform Real Property Acts, The Six-Month "Limited Priority
                  Lien" for Association Fees Under the Uniform Common Interest
                  Ownership Act, at 9 n.8 (2013).
                             This interpretation is 'consistent with the UCIOA section upon
                  which NRS 116.3116 is based. The uniform act allows for an adopting
                  state to insert its authorized foreclosure method, whether it be judicial
                  foreclosure or by power of sale. But once the adopting state chooses a
                  method, it becomes mandatory:
                              (1) In a condominium or planned community, the
                              association's lien must be foreclosed in like
                              manner as a mortgage on real estate [or by power
                              of sale under [insert appropriate state statute]];
                             (2) In a cooperative whose unit owners' interests
                             in the units are real estate (Section 1-105), the
                             association's lien must be foreclosed in like
                             manner as a mortgage on real estate [or by power
                             of sale under [insert appropriate state statute]] [or
                             by power of sale under subsection (k)]; or
                              (3) In a cooperative whose unit owners' interests
                              in the units are personal property (Section 1-105),
                              the association's lien must be foreclosed in like
                              manner as a security interest under [insert
                              reference to Article 9, Uniform Commercial Code].
                  1982 UCIOA § 3-1160 (emphases added).
                              NRS 116.3116 departed from the uniform act in that it
                  permits, but does not mandate, nonjudicia.1 foreclosure.           See NRS
                  116.3116(7) ("This section does not prohibit actions to recover sums for
                  which subsection 1 creates a lien or prohibit an association from taking a
                  deed in lieu of foreclosure."). And, NRS 116.3116(2), as well as NRS
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                  116.310312(6), tie the "institution of an action" to the triggering of the
                  lien's superpriority effect. NRS 116.3116's variance from the uniform act
                  renders the Joint Editorial Board's report interpreting the uniform act's
                  intentions not informative on the proper reading of "institution of an
                  action" as used in NRS 116.3116(2).        See Sallee v. Stewart, 827 N.W.2d
                  128, 142 (Iowa 2013) (citing 2B Norman J. Singer & J.D. Shambie Singer,
                  Statutes & Statutory Construction § 52:5, at 370 (rev. 7th ed. 2012), for
                  "noting that ordinarily 'when a legislature models a statute after a
                  uniform act, but does not adopt particular language, courts conclude the
                  omission was "deliberate" or "intentional," and that the legislature
                  rejected a particular policy of the uniform act").
                              Furthermore, the report post-dates the Legislature's adoption
                  of the UCIOA. And while preenactment official commentary to uniform
                  acts, including the UCIOA, generally may inform this court's
                  understanding of the Legislature's codification of that uniform act,     see
                  Boulder Oaks Cmty. Assn v. B & J Andrews Enters., LLC,         125 Nev. 397,
                  405-06, 215 P.3d 27, 32-33 (2009) (considering the UCIONs official
                  comments when interpreting Nevada's codification of the uniform act),
                  this post-hoc commentary is not persuasive, especially in the face of
                  statutory language that states otherwise.       Cf. Ybarra v. State, 97 Nev.
                  247, 249, 628 P.2d 297, 297-98 (1981) (noting that generally, "a statute
                  adopted from another jurisdiction will be presumed to have been adopted
                  with the construction placed upon it by the courts of that jurisdiction
                  befbre its adoption" (emphasis added)); 2B Norman J. Singer & J.D.
                  Shambie Singer, Statutes & Statutory Construction § 52:2 (rev. 7th ed.
                  2012) ("When the state of origin interprets a statute after the adopting



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                state statute has been enacted, courts do not presume the adopting state
                also adopted the subsequent construction.").
                      Policy considerations
                            In my view, the Legislature's decision to require associations
                to judicially foreclose their lien to extinguish the first security interest
                alleviates potential problems that could arise under the majority's holding
                that nonjudicial foreclosures are enough. As the majority points out, by
                incorporating certain notice provisions from Chapter 107, Chapter 116
                appears to mandate that the association mail the notice of default and
                notice of sale to the first security holders who have recorded their security
                interest when the association is foreclosing on its lien. NRS 116.31168(1);
                NRS 107.090. But what the majority fails to adequately address is that
                the association is not required to indicate in its notices that superpriority
                portion of its lien being foreclosed on, let alone what the amount of the
                superpriority portion is: the association's notice of delinquent assessment
                and notice of default and election to sell need only state "the assessments
                and other sums which are due in accordance with subsection 1 of NRS
                116.3116." NRS 116.31162(1)(a); NRS 116.31162(1)(b); see also NRS
                116.311635(3)(a) (notice of sale must provide "the amount necessary to
                satisfy the lien"). Although the first security holder could prevent the
                extinguishment of its interest by purchasing the property at the
                association's foreclosure sale, see Carrillo v. Valley Bank of Nev., 103 Nev.
                157, 158, 734 P.2d 724, 725 (1987), Keever v. Nicholas Beers Co., 96 Nev.
                509, 515, 611 P.2d 1079, 1083 (1980), in the nonjudicial foreclosure
                setting, first security interest holders have no means by which to
                determine whether an association is even foreclosing on superpriority
                portions of its lien such as to prompt it to purchase the property at the
                association's sale. Thus, in my view, the majority fails to give adequate
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                consideration to the due process implications of its holding.   Cf. Koteeki v.
                Augusztiny, 87 Nev. 393, 395, 487 P.2d 925, 926 (1971) ("'(W)hen notice is
                a person's due, process which is a mere gesture is not due process. The
                means employed must be such as one desirous of actually informing the
                absentee might reasonably adopt to accomplish it." (quoting Mullane v.
                Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950))).
                            Relatedly, after the first deed of trust loses its security in the
                property pursuant to the association's foreclosure of its superpriority lien,
                the former homeowner generally will be liable for the amount still owed oil
                the debt. NRS 40.455. Under the majority's holding, in the nonjudicial
                foreclosure setting, the owner will be left with no mechanism by which to
                obtain the property's value as an offset against the amount still owed. For
                example, even if the foreclosure-sale purchaser took the property for an
                amount significantly lower than its fair market value, the owner would
                not have an unjust enrichment action against that purchaser; a sale under
                thefl nonjudicial foreclosure scheme for an association's lien "vests in the
                purchaser the title of the unit's owner without equity or right of
                redemption." NRS 116.31166(3). This also means that the owner, as well
                as the first security, will have no right to redeem the property under the
                majority's holding. NRS 116.31166(3); see also Bldg. Energetix Corp. v.
                EHE, LP, 129 Nev. „ 294 P.3d 1228, 1233 (2013) (recognizing               that
                there is no right to redeem after a Chapter 107 nonjudicial foreclosure sale
                because a sale under that chapter "vests in the purchaser the title of the
                grantor and any successors in interest without equity or right of
                redemption" (quoting NRS 107.080(5))).




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                                But if the association follows the Legislature's directive and
                  forecloses through court action,     see NRS 116.3116(2), then the rules
                  governing civil proceedings, see generally NRS Title 2, Chapters 10-22,
                  and specifically the rules governing actions affecting real property, as well
                  as the Nevada Rules of Civil Procedure, would govern. 1 A specific
                  protection that comes with judicial foreclosure is the one-year right of
                  redemption that is available to both the property owner and the otherwise
                  extinguished junior lienholders, which includes the first security interest
                  in this context. NRS 21.190; 21.200; 21.210; see also Bldg. Energetix
                  Corp., 129 Nev. at , 294 P.3d at 1233. If the owner or junior
                  lienholders pay what the purchaser at the judicial foreclosure sale paid to
                  acquire the property, plus any other statutorily required amounts, they
                  can redeem the property, NRS 21.200; 21.210; 21.220, allowing the
                  property's value to be applied to the first security interest's outstanding
                  loan amount. The full adjudication of the rights between the pertinent
                  parties and as to the property, including the association, the owner, and
                  the first security interest, as well as any other pertinent party, combined




                        1 NRS  40.430's "one action" rule for recovery of debt or enforcement
                  of rights secured by a mortgage or other lien upon real property would not
                  govern the association's judicial foreclosure action, as liens that arise
                  pursuant to an assessment under Chapter 116 are not considered a
                  "mortgage or other lien." NRS 40.433.



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                 with the statutory protections afforded with a judicial foreclosure, further
                 demonstrate that judicial foreclosure on an association's lien is necessary
                 to trigger its superpriority effect under NRS 116.3116(2).




                                                              AIIIP                  C.J.
                                                    Gibbo s

                 We concur:




                 Parraguirre




                 Cherry
                       al




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