NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE BANK OF NEW YORK MELLON, No. 20-15605
FKA The Bank of New York, as Trustee for
the Certificateholders of CWALT, Inc., D.C. No.
Alternative Loan Trust 2005-65CB, 2:17-cv-00984-KJD-EJY
Mortgage Pass-Through Certificates, Series
2005-65CB,
MEMORANDUM*
Plaintiff-Counter-
Defendant-Appellee,
v.
SOUTHERN TERRACE HOMEOWNERS
ASSOCIATION; et al.,
Defendants,
and
9783 COLORED WIND TRUST,
Defendant-Counter-Claimant-
Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted June 7, 2021**
Pasadena, California
Before: GRABER, CALLAHAN, and FORREST, Circuit Judges.
Defendant 9783 Colored Wind Trust timely appeals the summary judgment
entered in favor of Plaintiff Bank of New York Mellon. The district court declared
that Defendant’s interest in a parcel of real property in Nevada remains subject to
Plaintiff’s deed of trust. Reviewing de novo, U.S. Bank, N.A. v. White Horse
Estates Homeowners Ass’n, 987 F.3d 858, 862 (9th Cir. 2021), we affirm.
1. The district court properly exercised subject matter jurisdiction. Plaintiff
is a citizen of New York. Plaintiff alleged that Defendant is not a citizen of New
York. By failing to respond to Plaintiff’s request for admissions, Defendant
admitted that it is not a citizen of New York. Fed. R. Civ. P. 36(b), (a)(3). The
admitted fact is "conclusively established" unless Defendant moves for permission
to withdraw the admission. Fed. R. Civ. P. 36(b). Before us, Defendant declined
to acknowledge the admission, and Defendant has not asked us for permission to
withdraw or for a remand to allow the district court to consider such a motion. In
the circumstances, we are unpersuaded that Defendant is entitled to raise new
factual allegations contrary to its conclusive admission. See Verzosa v. Merrill
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
Lynch, Pierce, Fenner & Smith, Inc., 589 F.2d 974, 977 (9th Cir. 1978) (per
curiam) ("While ‘(c)onsent of parties cannot give the courts of the United States
jurisdiction, . . . the parties may admit the existence of facts which show
jurisdiction, and the courts may act judicially upon such an admission.’" (quoting
Railway Co. v. Ramsey, 89 U.S. (22 Wall.) 322, 327 (1874) (alterations in
original))); see also Schnabel v. Lui, 302 F.3d 1023, 1032 (9th Cir. 2002)
(affirming the district court’s exercise of jurisdiction where "[i]nformation
regarding [Defendant’s citizenship] was uniquely within Defendants’ capacity to
ascertain" and where Defendants "failed to raise a factual contention in the district
court, which if proved would deprive the court of subject matter jurisdiction").
The other defendants likewise are not citizens of New York.
2. Defendant forfeited the argument, raised for the first time on appeal, that
a genuine issue of material fact exists as to whether Plaintiff delivered a check to
the homeowners association’s agent. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d
1056, 1063 n.3 (9th Cir. 2007); Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.
1996).
3. The district court correctly held that the tender did not contain an
improper condition. Bank of Am., N.A. v. Arlington W. Twilight Homeowners
Ass’n, 920 F.3d 620, 623 (9th Cir. 2019) (per curiam); Bank of Am., N.A. v. SFR
Invs. Pool 1, LLC, 427 P.3d 113, 118 (Nev. 2018) (en banc). Because it is
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undisputed that the lien contained no nuisance or maintenance abatement charges,
the allegedly incorrect statement of law in the letter was irrelevant.
4. The district court correctly held that "a valid tender cures a default by
operation of law—that is, without regard to equitable considerations." Saticoy Bay
LLC Series 133 McLaren v. Green Tree Servicing LLC, 478 P.3d 376, 379 (Nev.
2020) (en banc) (internal quotation marks omitted).
AFFIRMED.
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