FILED
NOT FOR PUBLICATION
MAR 31 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROF-2013-S3 LEGAL TITLE TRUST No. 18-17048
V, By U.S. Bank National Association as
Legal Title Trustee, D.C. No.
2:17-cv-01933-JCM-GWF
Plaintiff-Appellant,
v. MEMORANDUM*
FLYING FROG AVENUE TRUST;
VENEZIA COMMUNITY
ASSOCIATION; RED ROCK
FINANCIAL SERVICES, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted March 27, 2020**
Las Vegas, Nevada
Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
This case arises out of a homeowners’ association (HOA) non-judicial
foreclosure sale in Las Vegas, Nevada. The plaintiff, Prof-2013-S3 Legal Title
Trust V by U.S. Bank National Association as Legal Title Trustee (U.S. Bank),
seeks to determine the effect of the 2013 non-judicial foreclosure sale of a home on
which it claims a deed of trust. U.S. Bank, as legal title trustee, sued the
foreclosure-sale purchaser, Flying Frog Avenue Trust, for a declaration that the
HOA sale did not extinguish its deed of trust. U.S. Bank and Flying Frog cross-
moved for summary judgment. The district court denied U.S. Bank’s motion and
granted Flying Frog’s because (1) the amount tendered was insufficient to
discharge the lien, (2) Nevada’s HOA foreclosure scheme was constitutional, and
(3) the sale was commercially reasonable. We reverse.
The district court erred in rejecting U.S. Bank’s argument that its
predecessor’s tender of more than nine months’ unpaid HOA assessments satisfied
the superpriority portion of the HOA’s lien on the property and preserved U.S.
Bank’s predecessor’s first security interest. Under Nevada law—decided after the
district court’s order in this case—the amount necessary to discharge an HOA’s
superpriority lien is nine months’ unpaid assessments and any maintenance and
nuisance abatement amounts. Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 427
P.3d 113, 117–18 (Nev. 2018) (“Diamond Spur”) (en banc). U.S. Bank’s
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predecessor tendered the necessary amount here. The valid tender discharged the
superpriority amount of the HOA’s lien. Id.
Flying Frog’s various arguments against this conclusion fail. First, Flying
Frog cites no authority to support its contention that certain sections of the
Restatement (Third) of Property: Mortgages supersede the clear statement of law
from the Nevada Supreme Court. The remainder of Flying Frog’s arguments have
been expressly rejected by the Nevada Supreme Court and this court. See Bank of
Am., N.A. v. Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620, 623 (9th Cir.
2019) (per curiam); Diamond Spur, 427 P.3d at 118–21.
U.S. Bank’s predecessor’s tender of the superpriority portion of the HOA
lien discharged that portion of the lien and preserved the first security interest.
This holding fully resolves this appeal and provides U.S. Bank all the relief it
seeks. We therefore need not address the remainder of U.S. Bank’s claims.
REVERSED.
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