NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONSTAR MORTGAGE LLC, No. 19-16244
Plaintiff-counter- D.C. No.
defendant-Appellee, 2:15-cv-01217-JAD-GWF
v.
MEMORANDUM*
THE SPRINGS AT SPANISH TRAIL
ASSOCIATION,
Defendant,
and
SATICOY BAY, LLC, SERIES 6974
EMERALD SPRINGS,
Defendant-counter-claimant-
Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted July 9, 2020**
Seattle, Washington
*
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).
Before: HAWKINS, D.M. FISHER,*** and M. SMITH, Circuit Judges.
The district court granted Nationstar Mortgage LLC summary judgment,
concluding that a valid tender of the superpriority portion of a homeowners
association’s (HOA) lien on a property in Las Vegas, Nevada, preserved the
original deed of trust, to which Nationstar succeeded. The property’s purchaser at
the HOA’s non-judicial foreclosure sale, Saticoy Bay, LLC, appeals. We have
jurisdiction under 28 U.S.C. § 1291, and affirm.1
Five of Saticoy Bay’s arguments are foreclosed under Nev. Rev. Stat. §
116.3116(2) (2011), our precedent, and the Nevada Supreme Court’s decision in
Bank of America, N.A. v. SFR Investments Pool 1, LLC, 427 P.3d 113 (Nev. 2018)
(Diamond Spur) (en banc).2
First, recorded notice of payment of the superpriority portion was not
necessary to preserve the deed of trust. “A valid tender of payment operates to
discharge a lien or cure a default.” Diamond Spur, 427 P.3d at 117. And a “plain
reading of [§ 116.3116(2)] indicates that the superpriority portion of an HOA lien
***
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
1
“We review de novo a district court’s order granting summary judgment.”
CitiMortgage, Inc. v. Corte Madera Homeowners Ass’n, __ F.3d __, 2020 WL
3396305, at *3 (9th Cir. June 19, 2020).
2
Although the Nevada legislature amended § 116.3116 in 2012, and that
version was at issue in Diamond Spur, the relevant provisions for our purposes
here are the same.
2
includes only charges for maintenance and nuisance abatement, and nine months of
unpaid assessments.” Id. The district court found that the law firm of Miles, Bauer,
Bergstrom & Winters, LLP (Miles Bauer) validly tendered the correct amount, and
Saticoy Bay does not argue to the contrary.
Second, the condition Miles Bauer placed upon its tender did not preclude
acceptance of the payment. The Nevada Supreme Court rejected a similar
argument in Diamond Spur, and, as the district court pointed out, the tender
condition here is the exact same as the one at issue there. See 427 P.3d at 118; see
also Bank of Am., N.A. v. Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620,
623 (9th Cir. 2019) (per curiam). We are bound to apply Nevada law, and
Diamond Spur remains good law. See, e.g., 7510 Perla Del Mar Ave Tr. v. Bank of
Am., N.A., 458 P.3d 348, 348-49 (Nev. 2020) (en banc).
Arlington West and Diamond Spur likewise foreclose Saticoy Bay’s
contentions that the HOA had a good-faith reason to believe the superpriority
portion of its lien was not limited to the amount Miles Bauer tendered; that the
tender was an assignment of property that had to be recorded; and that Saticoy Bay
should be protected as a bona fide purchaser of the property. See Arlington West,
920 F.3d at 623; Diamond Spur, 427 P.3d at 119-21.
Saticoy Bay presses only one issue not addressed specifically in these cases.
The district court, it says, “was still required to weigh the equities” even though it
3
“found that Miles Bauer made a valid tender.” Yet, apart from all else, Shadow
Wood Homeowners Ass’n, Inc. v. New York Community Bancorp, Inc., 366 P.3d
1105 (Nev. 2016) (en banc), did not concern a valid tender of the superpriority
portion of an HOA lien to preserve a first deed of trust, and the Court in Diamond
Spur exercised no such discretion.
Finally, because we, like the district court, conclude that the foreclosure sale
did not extinguish Nationstar’s deed of trust, we need not decide whether Nev.
Rev. Stat. § 116.31168 is unconstitutional, or whether the sale should be set aside
on an equitable basis.
AFFIRMED.
4
Nationstar Mortgage, LLC v. Saticoy Bay, LLC, Series 6974
Combined Opinion