NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
U.S. BANK, N.A., As Trustee for the No. 20-17449
Holders of the Wmalt 2006-AR8 Trust,
D.C. No.
Plaintiff-counter- 2:15-cv-01423-JCM-PAL
defendant-Appellant,
v. MEMORANDUM*
ALESSI & KOENIG, LLC; ANTELOPE
CANYON HOMEOWNERS
ASSOCIATION,
Defendants-Appellees,
SFR INVESTMENTS POOL 1, LLC,
Defendant-counter-claimant-
cross-claimant-Appellee,
v.
NATIONSTAR MORTGAGE LLC;
BANK OF AMERICA, NA,
Cross-claim-defendants-
Appellants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted February 18, 2022**
San Francisco, California
Before: McKEOWN and W. FLETCHER, Circuit Judges, and BENNETT,***
District Judge.
U.S. Bank, N.A., Nationstar Mortgage, LLC, and Bank of America, N.A.
(collectively, “Banks”) appeal from the district court’s grant of summary judgment
to SFR Investments Pool 1, LLC (“SFR”) against the Banks in their quiet title
action. Bank of America, N.A. (“Bank of America”) held a deed of trust on the
residential property at issue. The property is subject to the Covenants, Conditions,
and Restrictions of the Antelope Canyon Homeowners Association (“HOA”).
When the homeowner became delinquent on her HOA assessment payments,
Alessi & Koenig, LLC (“A&K”), representing the HOA, foreclosed on the
property. According to Miles, Bauer, Bergstrom & Winters LLP (“Miles Bauer”),
which was retained by Bank of America, Bank of America sent a tender check for
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
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$1,440 to A&K in an effort to satisfy the HOA’s superpriority lien on the property.
Miles Bauer’s records showed that the check was returned.
On cross motions for summary judgment, the district court granted summary
judgment to SFR. The court held that, in spite of the tender attempt, “SFR is
entitled to a declaratory judgment that the Banks’ first deed of trust was
extinguished pursuant to the properly conducted foreclosure sale.” The Banks
appeal the grant of summary judgment to SFR and the denial of summary
judgment to them.
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.
SFR Invs. Pool 1, LLC, 893 F.3d 1136, 1144 (9th Cir. 2018). We reverse the
district court’s grant of summary judgment to SFR and remand for further
proceedings.
Bank of America’s tender letter and check, had they been delivered, would
have preserved its deed of trust on the property.
Under Nevada law, a homeowners’ association has “a superpriority lien that,
when properly foreclosed upon, extinguishes a first deed of trust.” 7510 Perla Del
Mar Ave Tr. v. Bank of America, N.A., 458 P.3d 348, 348 (Nev. 2020) (en banc)
(citing SFR Invs. Pool 1, LLC v. U.S. Bank, N.A., 334 P.3d 408, 409 (Nev. 2014)
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(en banc)). The holder of a first deed of trust can, however, preserve its interest
even in the face of an HOA foreclosure “by tendering the superpriority portion of
the HOA’s lien before the foreclosure sale is held.” Id. (citing Bank of America,
N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d 113, 116 (Nev. 2018) (en banc)). “The
full superpriority amount consists of nine months of unpaid HOA dues and any
unpaid charges for maintenance and nuisance abatement.” Bank of America, N.A.
v. Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620, 623 (9th Cir. 2019);
accord SFR Invs., 427 P.3d at 117.
Here, Bank of America wrote a check for nine months of unpaid HOA dues
at a rate of $160 per month. This is sufficient to tender the superpriority lien when
“[t]he ledger d[oes] not indicate that the property had incurred any charges for
maintenance or nuisance abatement.” Arlington, 920 F.3d at 623; accord SFR
Invs., 427 P.3d at 118. In addition, the language that accompanied Bank of
America’s tender letter was not impermissibly conditional. Arlington, 920 F.3d at
623; SFR Invs., 427 P.3d at 118; Saticoy Bay LLC Series 133 McLaren v. Green
Tree Servicing LLC, 478 P.3d 376, 379 (Nev. 2020) (en banc). SFR is therefore
not entitled to summary judgment. Accordingly, we reverse the decision of the
district court in favor of SFR Investments Pool 1, LLC.
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However, with respect to Bank of America’s cross-motion for summary
judgment, SFR properly raises a genuine dispute of material fact as to whether
delivery of the tender check ever occurred. Though the Banks have produced a
screenshot suggesting that the check was delivered and then returned by A&K,
other evidence indicates that the tender letter and check may not have been
delivered. A&K’s records contain entries that reflect other communications with
Miles Bauer but do not reflect receipt of a tender attempt. Moreover, Miles
Bauer’s tender letter, unlike its other communications with A&K, does not contain
a notation that it was “sent via first class mail.” In the face of this mixed evidence,
summary judgment in favor of the Banks is not appropriate. We therefore remand
for further proceedings.
REVERSED and REMANDED.
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