Bank of America, Na v. Kenneth Berberich

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2020
• Docket: 19-15924
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BANK OF AMERICA, NA, FKA No. 19-15924 Countrywide Home Loans Servicing LP, successor by merger to on behalf of BAC D.C. No. Home Loans Servicing LP, 2:16-cv-00279-GMN-CWH

Plaintiff-Appellee, MEMORANDUM* v.

KENNETH BERBERICH,

Defendant-Appellant,

and

SUNRISE HIGHLANDS COMMUNITY ASSOCIATION; ALESSI & KOENIG, LLC,

Defendants.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Submitted December 11, 2020** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: TASHIMA, TALLMAN, and MURGUIA, Circuit Judges.

Defendant-Appellant Kenneth Berberich appeals the district court’s grant of

partial summary judgment in favor of Plaintiff-Appellee Bank of America, N.A.

(“Bank of America”). Reviewing de novo, CitiMortgage, Inc. v. Corte Madera

Homeowners Ass’n, 962 F.3d 1103, 1106 (9th Cir. 2020), we affirm.

Bank of America tendered nine months of unpaid assessments to Sunrise

Highlands Homeowners Association (“Sunrise Highlands HOA”) to satisfy the

HOA’s superprioirty lien on the subject property and thereby establish Bank of

America’s superior interest as the holder of the first deed of trust. Berberich

argues that the district court erred in concluding Bank of America’s tender was

sufficient to protect Bank of America’s interest because it did not include a

“reserve” for continuing nuisance abatement charges and was impermissibly

conditional.

1. The superpriority portion of an HOA’s lien “includes only charges for

maintenance and nuisance abatement, and nine months of unpaid assessments.”

Bank of Am., N.A. v. SFR Invs. Pool 1, LLC (“Diamond Spur”), 427 P.3d 113, 117

(Nev. 2018) (en banc). “If the HOA’s ledger does not show any charges for

maintenance or nuisance abatement, a tender of nine months of HOA dues is

sufficient” to satisfy the superpriority portion of the HOA’s lien. Bank of Am.,

N.A. v. Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620, 623 (9th Cir.

2 2019). Because the ledger provided by Sunrise Highlands HOA did not indicate

that the property had incurred any charges for maintenance or nuisance abatement,

the tender of nine months assessments was sufficient to satisfy Sunrise Highlands

HOA’s superpriority lien.

2. Bank of America’s tender did not contain an impermissible condition. See

Diamond Spur, 427 P.3d at 118 (holding that a nearly identical letter

accompanying payment contained no impermissible conditions).

Therefore, the district court did not err in concluding Bank of America’s tender

was sufficient to satisfy Sunrise Highlands HOA’s superpriority lien and protect

Bank of America’s interest as the holder of the first deed of trust.

AFFIRMED.