NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF NEW YORK MELLON, FKA No. 19-16590
Bank of New York, as successor in interest
to JP Morgan Chase Bank, as trustee for D.C. No.
Structured Asset Mortgage Investments, II, 2:16-cv-00478-JCM-GWF
Inc. Bear Sterns Alta-A Trust 2005-9,
Plaintiff-Appellant, MEMORANDUM*
v.
LAS VEGAS DEVELOPMENT GROUP,
LLC; ROYAL HIGHLANDS STREET
AND LANDSCAPE MAINTENANCE
CORPORATION; AIRMOTIVE
INVESTMENTS, LLC,
Defendants-Appellees,
and
ALESSI & KOENIG, LLC,
Defendant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted November 17, 2020**
San Francisco, California
Before: GRABER and BRESS, Circuit Judges, and DAWSON,*** District Judge.
Bank of New York Mellon (“BNYM”) appeals the district court’s grant of
summary judgment for Las Vegas Development Group, Royal Highlands Street and
Landscape Maintenance Corporation (“HOA”), and Airmotive Investments on
BNYM’s claim to quiet title for a residential property in Las Vegas, Nevada.
Reviewing de novo, CitiMortgage, Inc. v. Corte Madera Homeowners Ass’n, 962
F.3d 1103, 1106 (9th Cir. 2020), we affirm.
1. BNYM argues that the foreclosure sale should be set aside because the
HOA violated Nevada Revised Statutes section 116.31163,1 which requires copies
of the Notice of Default to be mailed to certain entities. To set aside the sale under
Nevada law, BNYM had to show that the HOA failed to “substantially comply” with
the statute’s notice requirements by establishing (1) lack of actual notice and (2)
prejudice. U.S. Bank, Nat’l Ass’n ND v. Res. Grp., LLC, 444 P.3d 442, 447–48 (Nev.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas, sitting by designation.
1
All citations to the Nevada Revised Statutes are to the version of the
code in effect at the time of the foreclosure sale.
2
2019). BNYM fails to make either showing. The Notice of Default was mailed to
Mortgage Electronic Registration Systems, Inc. (MERS), BNYM’s predecessor-in-
interest. Americas Service Company (ASC) was BNYM’s agent at the time, and the
record shows that ASC also received actual notice through a March 2011 fax from
Tamica Minor. In any event, BNYM fails sufficiently to allege any prejudice from
the HOA’s failure to mail the Notice of Default to ASC. See id. at 447.
2. BNYM also argues that the sale was void because the HOA failed to
mail it the Notice of Sale, as required by Nevada Revised Statutes
section 116.311635(1)(b). BNYM again fails to establish a lack of actual notice or
prejudice. The HOA mailed a Notice of Sale to Quality Loan Service Corporation,
which the parties do not dispute acted as BNYM’s agent at the time. And, as noted
above, MERS and ACS had actual notice that foreclosure proceedings had begun.
In any event, nothing in the record suggests that BNYM would have paid the
superpriority amount had it received the Notice of Sale, or that it would have
attended the foreclosure sale and bid on the property. Without evidence of prejudice
to BNYM, the sale cannot be declared void. U.S. Bank, 444 P.3d at 447.
3. BNYM also argues that the foreclosure sale should be set aside because
the price was inadequate and the HOA failed to provide the statutorily required
notice. Under Nevada law, “inadequacy of price, however gross, is not in itself a
sufficient ground for setting aside a trustee’s sale absent additional proof of some
3
element of fraud, unfairness, or oppression as accounts for and brings about the
inadequacy of price.” Nationstar Mortg., LLC v. Saticoy Bay LLC Series 2227
Shadow Canyon, 405 P.3d 641, 643 (Nev. 2017) (quotations omitted). BNYM fails
to make that showing. Even if the sale price were inadequate and the HOA failed to
provide statutory notice, BNYM offers no proof that the HOA’s failure to provide
notice “account[ed] for and [brought] about the inadequacy of [the] price.” Id.
4. BNYM also challenges the foreclosure sale on due process grounds. It
first argues that it was never mailed a copy of the Notice of Sale. But as noted, the
HOA mailed the notice to BNYM’s agent, Quality Loan Service Corporation.
BNYM also challenges the contents of the Notice itself. But we have held that the
contents of that Notice satisfy the requirements of due process. Bank of Am., N.A.
v. Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620, 623–24 (9th Cir. 2019)
(per curiam).
5. BNYM lastly raises a Takings Clause challenge to the foreclosure sale.
But our recent decision in Wells Fargo Bank, N.A. v. Mahogany Meadows Ave. Tr.,
No. 18-17320, 2020 WL 6498000 (9th Cir. Nov. 5, 2020), forecloses this argument.
AFFIRMED.
4
Bank of New York Mellon v. Las Vegas Development Group
Combined Opinion