NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BANK OF AMERICA, N.A., No. 20-16626
Plaintiff-counter- D.C. No.
defendant-Appellee, 2:16-cv-00635-APG-BNW
v.
MEMORANDUM*
LAKEVIEW OWNERS’ ASSOCIATION;
et al.,
Defendants,
and
TRP FUND V, LLC,
Defendant-counter-claim-
3rd-party-plaintiff-
Appellant,
v.
ELIZABETH A. PETERSON,
Third-party-defendant.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted November 15, 2021**
San Francisco, California
Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.
TRP Fund V, LLC (“TRP”) appeals the district court’s grant of summary
judgment to Bank of America, N.A. (“BANA”) in a quiet title action. Countrywide
Home Loans (“Countrywide”), and by extension its parent company, BANA, was
the successor in interest to a Deed of Trust on the residential property at issue.
When the homeowners’ association (“HOA”) foreclosed on the property, it mailed
copies of the Notice of Default and Notice of Sale to the homeowner and BANA’s
predecessor in interest but did not notify either Countrywide or BANA. The
district court ruled that the foreclosure sale “did not extinguish [BANA’s] deed of
trust,” even though BANA had made no attempt to tender the superpriority portion
of the HOA’s lien, based on Nevada’s excuse of tender doctrine.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district
court’s grant of summary judgment de novo. Fed. Home Loan Mortg. Corp. v.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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SFR Invs. Pool 1, LLC, 893 F.3d 1136, 1144 (9th Cir. 2018). We affirm the
district court’s grant of summary judgment to BANA.
The Nevada Supreme Court explained the excuse of tender doctrine under
Nevada law in 7510 Perla Del Mar Ave Trust v. Bank of America, N.A. (“Perla”),
458 P.3d 348 (Nev. 2020) (en banc). Generally, an HOA has a “superpriority lien
that, when properly foreclosed upon, extinguishes a first deed of trust.” Id. at 348
(citing SFR Invs. Pool 1, LLC v. U.S. Bank, N.A., 334 P.3d 408, 409 (Nev. 2014)).
The deed of trust beneficiary can preserve its interest after foreclosure by tendering
the superpriority portion of this lien before the foreclosure sale. Id. (citing Bank of
America, N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d 113, 116 (Nev. 2018)). The
Perla doctrine, however, entirely excuses the beneficiary from making a tender
attempt where “evidence shows that the party entitled to payment had a known
policy of rejecting such payments.” Perla, 458 P.3d at 349.
This doctrine applies here. In sworn testimony, representatives of Alessi &
Koenig, LLC (“Alessi”), the HOA’s agent, stated that, during the relevant time
period, Alessi categorically refused BANA’s tender attempts because they
contained language to the effect that acceptance of tender would cure any HOA
deficiency in full. Employees of BANA and its legal representative in HOA
foreclosure sales, Miles, Bauer, Bengstrom & Winters, LLP (“Miles Bauer”),
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testified that BANA knew of this policy. Contrary to TRP’s arguments otherwise,
Perla does not further require either proof of reliance on the HOA’s policy or
evidence of a failed tender attempt in the case at issue. A known policy suffices.
See Perla, 458 P.3d at 351 (applying excuse of tender doctrine even though junior
lien holder’s attempt to tender “was insufficient to constitute a valid tender”).
The district court properly relied on trial testimony in unrelated cases to
reach its holding. In the Ninth Circuit, “unauthenticated documents cannot be
considered on a motion for summary judgment,” Hal Roach Studios, Inc. v.
Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989), so the district
court could not rely on unauthenticated letters from Alessi to Miles Bauer, see
Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001) (laying out
requirements for authenticating documents at summary judgment). However,
BANA properly authenticated the trial testimony it presented. See Orr v. Bank of
America, NT & SA, 285 F.3d 764, 776 (9th Cir. 2002) (citing Fed. R. Civ. P. 80).
The district court correctly held that the excuse of tender doctrine applies
and that BANA’s properly presented undisputed evidence showed that Alessi had a
known policy of rejecting BANA’s tender attempts. BANA’s interest in the
property is therefore preserved.
AFFIRMED.
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