NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE BANK OF NEW YORK MELLON, No. 17-16575
FKA The Bank of New York, as Trustee for
the Benefit of the Certificate holders of the D.C. No.
CWABS, Inc., Asset Backed Certificates, 3:16-cv-00208-RCJ-VPC
Series 2004-2,
Plaintiff-Appellee, MEMORANDUM*
v.
THUNDER PROPERTIES, INC.,
Defendant-Appellant,
and
TOWNHOUSE SOUTH ASSOCIATION,
INC.; E. ALAN TIRAS, P.C.,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted September 13, 2019
San Francisco, California
Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Bank of New York Mellon brought a quiet title suit against Thunder
Properties, Inc., alleging that the Bank’s pre-foreclosure tender of the superpriority
amount of a homeowners association lien on a property preserved its interest in the
property. Thunder Properties, which purchased the property at foreclosure, appeals
the district court’s grant of summary judgment in favor of Bank of New York
Mellon. We review de novo whether subject-matter jurisdiction exists, Kroske v.
U.S. Bank Corp., 432 F.3d 976, 979 (9th Cir. 2005), whether summary judgment
was correctly granted, GoPets Ltd. v. Hise, 657 F.3d 1024, 1029 (9th Cir. 2011),
and whether the district court’s interpretation of state law was correct, Lahoti v.
Vericheck, Inc., 636 F.3d 501, 505 (9th Cir. 2011). We affirm.
There is subject-matter jurisdiction under 28 U.S.C. § 1332 in this case
because the amount in controversy is indisputably met, Bank of New York Mellon
brought suit in its own name in its capacity as trustee, nothing alleged in the
complaint suggests that the relevant trust is anything but a traditional trust, and the
Bank is diverse from all Defendants. See Americold Realty Tr. v. ConAgra Foods,
Inc., 136 S. Ct. 1012, 1016 (2016) (when the trustee of a traditional trust “files a
lawsuit or is sued in her own name, her citizenship is all that matters for diversity
purposes”); Demarest v. HSBC Bank USA, N.A., 920 F.3d 1223, 1228–29 (9th Cir.
2019), cert. docketed, No. 19-219 (U.S. Aug. 20, 2019) (same). In the district
court, Defendants mounted a facial attack on Bank of New York Mellon’s
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jurisdictional allegations, asserting that the allegations were insufficient on their
face to invoke diversity jurisdiction.1 See Leite v. Crane Co., 749 F.3d 1117, 1121
(9th Cir. 2014). But accepting as true the Bank’s allegation that it is the trustee for
a class of certificate-holding beneficiaries, and drawing all reasonable inferences in
its favor, as required in the absence of a factual attack on the pleadings, the district
court correctly determined that the complaint was legally sufficient on its face. See
id.; Ehrman v. Cox Commc’ns, Inc., 932 F.3d 1223, 1227 (9th Cir. 2019).
Bank of New York Mellon’s tender of the full amount of the superpriority
portion of the homeowners association lien discharged the lien. See Bank of Am.,
N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d 113, 117–21 (Nev. 2018) (interpreting
Nev. Rev. Stat. § 116.3116 (2012)). Nevada law dictates that such a tender is
permissibly conditional; that the tender need not be “kept good”; that the tender
need not be recorded; and that the bona fide purchaser status of a post-tender buyer
of the property is irrelevant. Id. at 119–21. The foreclosure sale was therefore
void and Bank of New York Mellon’s mortgage remains. See id. at 121.
We conclude that none of Thunder Properties’s remaining arguments is
persuasive. Thunder Properties argues that there was a good-faith dispute as to the
1
As we read the record, and as Thunder Properties’ counsel conceded at oral
argument, Defendants never sought discovery to contest the truth of Bank of New
York Mellon’s factual allegations regarding jurisdiction. See Leite v. Crane Co.,
749 F.3d 1117, 1121 (9th Cir. 2014).
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superpriority amount. That argument has no merit because, based on the record
before us, Bank of New York Mellon tendered the statutorily correct amount. See
id. at 118; Bank of Am., N.A. v. Arlington W. Twilight Homeowners Ass’n, 920
F.3d 620, 623 (9th Cir. 2019). Finally, Thunder Properties’s equitable subrogation
and balance of the equities arguments fail because “equitable principles will not
justify a court’s disregard of statutory requirements.” Pellegrini v. State, 34 P.3d
519, 531 (Nev. 2001).
AFFIRMED.
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