NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF AMERICA, NA, FKA No. 19-17445
Countrywide Home Loans Servicing, LP, as
Successor by Merger to BAC Home Loans D.C. No.
Servicing, LP; FEDERAL NATIONAL 2:16-cv-01053-RFB-DJA
MORTGAGE ASSOCIATION,
Plaintiffs-Appellants, MEMORANDUM*
v.
SFR INVESTMENTS POOL 1, LLC,
Defendant-Appellee,
and
MADEIRA CANYON HOMEOWNERS
ASSOCIATION; NEVADA
ASSOCIATION SERVICES, INC.,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware, II, District Judge, Presiding
Argued and Submitted April 13, 2021
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: PAEZ and VANDYKE, Circuit Judges, and GLEASON,** District Judge.
Plaintiffs Bank of America, NA (“BANA”) and the Federal National
Mortgage Association (“Fannie Mae”) (collectively, “Fannie Mae”) appeal the
district court’s grant of summary judgment in favor of Defendants SFR
Investments Pool 1, LLC (“SFR”), the Madeira Canyon Homeowners Association
(“HOA”), and the HOA’s agent, the Nevada Association Services, Inc. (“NAS”).
This diversity action arises from the nonjudicial foreclosure sale by the HOA of
real property in Nevada. On appeal, Fannie Mae challenges the district court’s
summary judgment ruling on numerous grounds, but we need only address one to
conclude that the judgment must be reversed.
We have jurisdiction pursuant to 28 U.S.C. § 1332. Reviewing de novo,
Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011), we agree with
Fannie Mae that the 2010 rescission notice decelerated the demand for full
payment of the loan, rendering NRS 106.240 inapplicable. We therefore reverse
and remand.
Although there is no precedential Nevada Supreme Court decision on point,
the court recently addressed the effect of a rescission notice on a notice of default
and election to sell secured property under a deed of trust in Glass v. Select
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2
Portfolio Servs., Inc., 466 P.3d 939, 2020 WL 3604042, at *1 (Nev. 2020)
(unpublished), a non-precedential decision. Because the facts in Glass are similar
to the undisputed facts here, we find it persuasive and apply the court’s reasoning
to conclude that the district court erred in entering judgment in favor of
SFR. See Nev. R. App. P. 36(c).
In Glass, the servicer recorded a notice of default and election to sell under
a deed of trust. Glass, 466 P.3d at 939. There was no “dispute that the Notice of
Default accelerated the loan and made the balance immediately due.” Id. Later,
the servicer recorded a notice of rescission, which the court explained, “effectively
retracted the Notice of Default and restored the parties to the prior status they held
before the Notice of Default was filed.” Id. (citing Holt v. Reg’l Tr. Servs. Corp.,
26 P.3d 602, 606 (Nev. 2011)). As the court noted, the servicer’s rescission notice
“clearly state[d] that it does hereby rescind, cancel and withdraw the Notice of
Default and Election to Sell.” Id. at 939 (internal quotation marks deleted). The
court then concluded that “by explicitly cancelling this Notice of Default, [the
servicer] effectively cancelled the acceleration.” Id. In light of these events, the
court held that NRS 106.240 was inapplicable because the servicer rescinded the
notice of default. Id.
Similar to the facts in Glass, in the present case, the October 2008 notice of
default and election to sell under the deed of trust declared all sums secured by the
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deed of trust “immediately due and payable” and “elect[ed] to cause the trust
property to be sold to satisfy the obligations secured [by the deed of trust].” The
2010 rescission notice, however, “rescind[ed], cancel[led] and withd[rew] the
Notice of Default and Election to Sell . . . .” As in Glass, the effect of the
rescission notice was not only to cancel the sale, but also to cancel the demand for
full payment of the note. In granting summary judgement for SFR, the district
court noted that the rescission notice did not expressly state that “the acceleration
of the loan has been rescinded” and that it reserved “any rights, remedies, or
privileges secured to the beneficiary [Fannie Mae].” On the basis of these
concerns, the district court concluded “that more is required in order to show that
deceleration of payment was intended.”
SFR echoes these arguments in its appellate brief. These arguments are not
persuasive after Glass, which neither the district court nor the parties had the
benefit of before the court entered judgment on behalf of SFR. Because the 2010
rescission notice decelerated the demand for full payment, the notice rendered
NRS 106.240 inapplicable, and the district court erred by concluding
otherwise. We therefore reverse the district court’s grant of summary judgment to
SFR.
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Because NRS 106.240 is not applicable, we need not address the other issues
raised on appeal by Fannie Mae. We remand to the district court so that it may
address in the first instance any remaining issues raised by the parties.
REVERSED and REMANDED for further proceedings consistent with
this disposition.
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