Bank of America, N.A. v. Bfp Investments 3, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 2021
• Docket: 20-15215
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BANK OF AMERICA, N.A., FKA No. 20-15215 Countrywide Home Loans Servicing, LP, Successor by Merger to BAC Home Loans D.C. No. Servicing, LP, 2:16-cv-01612-JCM-CWH

Plaintiff-Counter- Defendant-Appellee, MEMORANDUM*

v.

PACIFIC LEGENDS GREEN VALLEY OWNERS’ ASSOCIATION; NEVADA ASSOCIATION SERVICES, INC.,

Defendants,

and

BFP INVESTMENTS 3, LLC,

Defendant-Counter-Claimant- Cross-Claimant-Appellant,

SVEN STEFFEN,

Cross-Claim-Defendant.

* 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 June 7, 2021** Pasadena, California

Before: GRABER, CALLAHAN, and FORREST, Circuit Judges.

Defendant BFP Investments 3, LLP, timely appeals the district court’s grant

of summary judgment to Plaintiff Bank of America, N.A., and the court’s denial of

Defendant’s motion to reconsider. Reviewing the summary judgment de novo,

U.S. Bank, N.A. v. White Horse Ests. Homeowners Ass’n, 987 F.3d 858, 862 (9th

Cir. 2021), and the denial of reconsideration for abuse of discretion, Wells Fargo

Bank, N.A. v. Mahogany Meadows Ave. Tr., 979 F.3d 1209, 1218 (9th Cir. 2020),

we affirm.

1. The district court correctly held that Plaintiff’s cashing of the post-sale

check did not ratify the understanding by Nevada Association Services ("NAS")

that the deed of trust had subpriority status, nor did it constitute estoppel or waiver

under Nevada law. Defendant cites cases from other jurisdictions that hold that

ratification or estoppel may occur from acceptance of a post-sale payment with full

knowledge that the partial payment is intended to extinguish the recipient’s right to

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 the property. But, here, Defendant points solely to the check itself, which nowhere

expressed an intent that the payment would extinguish the loan. Nevada Revised

Statutes section 116.31164(c)(2014) specifies the duties of the foreclosing entity,

but neither that statute nor any other source of Nevada law imposes an affirmative

duty on lienholders to inquire as to whether a partial payment is intended as

payment in full.

2. The district court correctly granted summary judgment to Plaintiff, albeit

on a ground not reached by the court. Plaintiff argued to the district court that any

tender would have been futile, and we may affirm on any ground supported by the

record. M & T Bank v. SFR Invs. Pool 1, LLC, 963 F.3d 854, 857 (9th Cir. 2020).

As in 7510 Perla Del Mar Avenue Trust v. Bank of America, N.A., 458 P.3d 348,

349 (Nev. 2020) (en banc), any tender by Plaintiff would have been futile, because

NAS had a known policy of rejecting conditional, partial payments at all relevant

times. Whether NAS received the 2012 letter is not relevant to the "futility of

tender" analysis, which queries solely whether NAS had a known policy of

rejecting tender. Id. at 351–52.

3. Defendant forfeited the argument—raised for the first time in the reply

brief—that Defendant is a bona fide purchaser even if tender is excused. Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

AFFIRMED.