Bank of New York Mellon v. Las Vegas Development Group

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 19, 2020
• Docket: 19-16590
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BANK OF NEW YORK MELLON, FKA No. 19-16590 Bank of New York, as successor in interest to JP Morgan Chase Bank, as trustee for D.C. No. Structured Asset Mortgage Investments, II, 2:16-cv-00478-JCM-GWF Inc. Bear Sterns Alta-A Trust 2005-9,

Plaintiff-Appellant, MEMORANDUM*

v.

LAS VEGAS DEVELOPMENT GROUP, LLC; ROYAL HIGHLANDS STREET AND LANDSCAPE MAINTENANCE CORPORATION; AIRMOTIVE INVESTMENTS, LLC,

Defendants-Appellees,

and

ALESSI & KOENIG, LLC,

Defendant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted November 17, 2020** San Francisco, California

Before: GRABER and BRESS, Circuit Judges, and DAWSON,*** District Judge.

Bank of New York Mellon (“BNYM”) appeals the district court’s grant of

summary judgment for Las Vegas Development Group, Royal Highlands Street and

Landscape Maintenance Corporation (“HOA”), and Airmotive Investments on

BNYM’s claim to quiet title for a residential property in Las Vegas, Nevada.

Reviewing de novo, CitiMortgage, Inc. v. Corte Madera Homeowners Ass’n, 962

F.3d 1103, 1106 (9th Cir. 2020), we affirm.

1. BNYM argues that the foreclosure sale should be set aside because the

HOA violated Nevada Revised Statutes section 116.31163,1 which requires copies

of the Notice of Default to be mailed to certain entities. To set aside the sale under

Nevada law, BNYM had to show that the HOA failed to “substantially comply” with

the statute’s notice requirements by establishing (1) lack of actual notice and (2)

prejudice. U.S. Bank, Nat’l Ass’n ND v. Res. Grp., LLC, 444 P.3d 442, 447–48 (Nev.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas, sitting by designation. 1 All citations to the Nevada Revised Statutes are to the version of the code in effect at the time of the foreclosure sale.

2 2019). BNYM fails to make either showing. The Notice of Default was mailed to

Mortgage Electronic Registration Systems, Inc. (MERS), BNYM’s predecessor-in-

interest. Americas Service Company (ASC) was BNYM’s agent at the time, and the

record shows that ASC also received actual notice through a March 2011 fax from

Tamica Minor. In any event, BNYM fails sufficiently to allege any prejudice from

the HOA’s failure to mail the Notice of Default to ASC. See id. at 447.

2. BNYM also argues that the sale was void because the HOA failed to

mail it the Notice of Sale, as required by Nevada Revised Statutes

section 116.311635(1)(b). BNYM again fails to establish a lack of actual notice or

prejudice. The HOA mailed a Notice of Sale to Quality Loan Service Corporation,

which the parties do not dispute acted as BNYM’s agent at the time. And, as noted

above, MERS and ACS had actual notice that foreclosure proceedings had begun.

In any event, nothing in the record suggests that BNYM would have paid the

superpriority amount had it received the Notice of Sale, or that it would have

attended the foreclosure sale and bid on the property. Without evidence of prejudice

to BNYM, the sale cannot be declared void. U.S. Bank, 444 P.3d at 447.

3. BNYM also argues that the foreclosure sale should be set aside because

the price was inadequate and the HOA failed to provide the statutorily required

notice. Under Nevada law, “inadequacy of price, however gross, is not in itself a

sufficient ground for setting aside a trustee’s sale absent additional proof of some

3 element of fraud, unfairness, or oppression as accounts for and brings about the

inadequacy of price.” Nationstar Mortg., LLC v. Saticoy Bay LLC Series 2227

Shadow Canyon, 405 P.3d 641, 643 (Nev. 2017) (quotations omitted). BNYM fails

to make that showing. Even if the sale price were inadequate and the HOA failed to

provide statutory notice, BNYM offers no proof that the HOA’s failure to provide

notice “account[ed] for and [brought] about the inadequacy of [the] price.” Id.

4. BNYM also challenges the foreclosure sale on due process grounds. It

first argues that it was never mailed a copy of the Notice of Sale. But as noted, the

HOA mailed the notice to BNYM’s agent, Quality Loan Service Corporation.

BNYM also challenges the contents of the Notice itself. But we have held that the

contents of that Notice satisfy the requirements of due process. Bank of Am., N.A.

v. Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620, 623–24 (9th Cir. 2019)

(per curiam).

5. BNYM lastly raises a Takings Clause challenge to the foreclosure sale.

But our recent decision in Wells Fargo Bank, N.A. v. Mahogany Meadows Ave. Tr.,

No. 18-17320, 2020 WL 6498000 (9th Cir. Nov. 5, 2020), forecloses this argument.

AFFIRMED.