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67 active-duty member of the Army Reserve, the HOA foreclosure sale was a flagrant violation of the Servicemembers Civil Relief Act, 50 U.S.C. §3953. e district court denied Wells Fargo's motion because Wells Fargo was unable to explain why it did not reveal or know of its borrower's status earlier. 5TH AMENDMENT/TAKINGS CLAIM e Takings Clause of the Fifth Amendment, made applicable to the states under the Fourteenth Amendment to the United States Constitution, provides private property shall not be taken for public use without just compensation. In determining whether a regulation, or in this instance, a statute, constitutes a compensable "taking," courts consider three factors: 1. e economic impact on the property owner, 2. the interference with investment backed expectations, and 3. the character of the government action. Intended to bolster the HOAs enforcement authority, the superpriority statute facially appears to illicitly and unjustly strip lenders of their prerogative as first lien holders without compensation. Certainly, that is the argument zealously advanced by Wells Fargo in Wells Fargo v. Mahogany Meadows Ave. Trust (2020). However, the Ninth Circuit decidedly disagreed. While the Supreme Court has long recognized that liens such as Wells Fargo's deed of trust constitute property under the Takings Clause, the Ninth Circuit concluded that one of the requisite prongs of eminent domain is simply not satisfied as there is a profound absence of government action. Pursuant to Nevada law, later fortified by the court's ruling in SFR, we now understand that HOAs in the Battle State enjoy a superpriority lien on association properties for unpaid assessments that has the capacity to extinguish a first deed of trust held by a mortgage lender. e appellate panel, agreeing with both the Nevada Supreme Court in Saticoy Bay, and its predecessor district court ruling in SFR, held that Wells Fargo did not suffer an uncompensated physical nor regulatory taking under the Takings Clause of the U.S. Constitution. Interestingly the Court notes the potential for a philosophical conundrum in its analysis of the purported taking of Wells Fargo's lien, which is an intangible interest. Nonetheless, Wells Fargo, under the physical or regulatory analysis, is plagued with the onus of identifying what action actually constitutes the egregious taking. First, importantly rejecting Wells Fargo's claim that the foreclosure proceeding initiated by the HOA, Mahogany Meadows Ave. Trust, amounted to a taking, the Ninth Circuit noted that the HOA's foreclosure proceeding was not, nor could it liberally be construed as, a taking under any circumstance because the Takings Clause governs the conduct of the government exclusively and not that of a private actor. Here, the Copper Creek HOA, which conducted the foreclosure, is a private entity not an arm of the State of Nevada and not beholden to nor subject to the parameters of the Takings Clause. As such, the HOA's foreclosure could not identify as a taking and therefore Wells Fargo's claim of foul play was moot. Secondly, the Ninth Circuit rejected Wells Fargo's contention that the legislative enactment of NRS 116.3116 itself embodied a taking because: 1. Although the HOA's action was authorized by Nevada law, that authorization and resultant foreclosure sale by a private actor does not metamorphose into government action, and 2. the enactment of the superpriority statute predated origination of Wells Fargo's lien on the property, meaning Wells Fargo could not demonstrate that it had suffered an uncompensated taking as defined by the Takings Clause. e Court relied on Saticoy Bay where the Nevada Supreme Court held that the extinguishment of a subordinate deed of trust through an HOA's nonjudicial foreclosure did not materialize as a violation of the Takings Clause. Moreover, the conspicuous factual timeline here challenged Wells Fargo's position that it should maintain its lien unimpaired by a purported subordinate HOA lien. e timeline of events revealed the following: » NRS 116.3116 was enacted in 1991; » e HOA's covenants, condition and restrictions, which created the obligation to pay dues, were recorded in 2003; and » Both events occurred before 2008 Wells Fargo acquired its lien. In a nutshell, the interest Wells Fargo asserted, that being its right to maintain its lien unimpaired by the HOA lien, was in fact not even part of its title from the onset. Furthermore, though Wells Fargo argued that this interpretation yields a harsh result by allowing a small HOA lien to wipe out the value of a much larger deed of trust, the Court reminded that property-tax liens are likewise often lesser than mortgage liens but nonetheless, routinely abate the lender's often substantial interest, and do so judiciously. FOURTEENTH AMENDMENT—DUE PROCESS CLAIM e Due Process Clause of the Fourteenth Amendment requires the government to provide notice reasonably calculated to apprise all interested parties of the pendency of the action and to afford said parties of the opportunity to object to the same. Wells Fargo relied on the Due Process Clause in its appeal to challenge the constitutionality of the HOA foreclosure, specifically pointing to what the lender characterized as deficient notice. Nevada law requires that upon foreclosure, HOAs provide all junior interest holders the following: 1. Notice of default and election to sell the property to satisfy the lien; 2. Notice of the amount of assessments and sums owed; and 3. Notice of time and place of foreclosure sale. See NRS 116.31162(b) and 31635(1). Well Fargo argued, while conceding receipt of actual notice, that the notice provided by

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