Bank of New York Mellon v. Royal Highlands St & Landscape

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 14, 2020
• Docket: 19-16579
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BANK OF NEW YORK MELLON, FKA No. 19-16579 Bank of New York, as Successor to JPMorgan Chase Bank, N.A., Trustee for the D.C. No. Holders of SAMI II Trust 2006-AR7, 2:16-cv-01993-JCM-BNW

Plaintiff-Counter- Defendant-Appellant, MEMORANDUM*

v.

ROYAL HIGHLANDS STREET AND LANDSCAPE MAINTENANCE CORPORATION,

Defendant-Appellee,

SFR INVESTMENTS POOL 1, LLC,

Defendant-Counter-Claimant- Appellee,

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 August 12, 2020** San Francisco, California

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

Plaintiff Bank of New York Mellon timely appeals from the entry of final

judgment against Plaintiff and in favor of Defendant and Counterclaimant SFR

Investments Pool 1, LLC ("SFR"). Applying Nevada law, the district court held

that SFR held valid title to the disputed property following a foreclosure sale in

early 2013. The court also dismissed, as moot, all of Plaintiff's remaining claims

against SFR and two other Defendants, Royal Highland Street and Landscape

Maintenance Corporation ("Royal Highland") and Alessi & Koenig, LLC.

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

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

1. The district court correctly held that Royal Highland was not a "limited-

purpose association" for purposes of Nevada Revised Statutes section

116.1201(2)(a).1 Among other reasons, Royal Highland's declaration does not

** 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 and Nevada Administrative Code are to the version of the code in effect at the time of the foreclosure sale.

2 contain the "express[] prohibit[ions]" required by Nevada Administrative Code

116.090(1)(c).

2. Even assuming that Royal Highland failed to comply with all of the

mailing provisions of Nevada Revised Statutes chapter 116, Plaintiff has neither

disputed that it received timely notice through alternative means nor argued that

any deficient mailing prejudiced Plaintiff. Accordingly, the sale is not statutorily

void. See U.S. Bank, Nat'l Ass'n ND v. Res. Grp., LLC, 444 P.3d 442, 448 (Nev.

2019) (holding that a sale is statutorily void due to deficient mailing only if, among

other things, the holder of the first deed of trust "did not receive timely notice by

alternative means" and "suffered prejudice as a result").

3. The district court correctly held that no equitable basis exists for setting

aside the sale. Even assuming that Royal Highland's conduct constituted

unfairness, Plaintiff has not pointed to any evidence, such as its own reliance on

Royal Highland's conduct, that any unfairness affected the sale. See Res. Grp.,

LLC v. Nev. Ass'n Servs., 437 P.3d 154, 160–61 (Nev. 2019) (en banc) (holding

that "a court may set the sale aside" only "if the totality of the circumstances

demonstrates that the sale itself was affected by 'fraud, unfairness, or oppression'");

Nationstar Mortg., LLC v. Saticoy Bay LLC Series 2227 Shadow Canyon, 405

P.3d 641, 648–49 (Nev. 2017) ("[I]f the district court closely scrutinizes the

circumstances of the sale and finds no evidence that the sale was affected by fraud,

3 unfairness, or oppression, then the sale cannot be set aside, regardless of the

inadequacy of price." (emphasis added)); see also Res. Grp. LLC, 437 P.3d at 160

("The party seeking to set aside the sale on equitable grounds bears the burden to

produce evidence showing that the sale was affected by fraud, unfairness, or

oppression that would justify setting aside the sale." (internal quotation marks and

brackets omitted)).

4. The district court correctly rejected Plaintiff's facial due-process

challenge to Nevada's pre-2015 foreclosure-notice scheme. The Nevada Supreme

Court has clarified that the statute requires a mandatory notice of default and notice

of sale to all holders of subordinate interests to a homeowners association’s

superpriority lien. SFR Invs. Pool 1, LLC v. Bank of New York Mellon, 422 P.3d

1248, 1252–53 (Nev. 2018) (en banc). Such notice adequately apprises holders of

subordinate interests that a foreclosure sale is imminent and affords them an

opportunity to protect their interest in the property, which is all that due process

demands in this context. Contrary to Plaintiff's argument, the notice provided need

not specify the superpriority portion of a homeowners association’s lien, and it

need not notify lien holders of any specific risk to their deeds of trust. See Bank of

Am., N.A. v. Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620, 622, 624

(9th Cir. 2019) (per curiam) (upholding the statute’s facial constitutionality

4 notwithstanding the fact that the deed of trust holder did not receive notice of the

superpriority portion of the lien or provide particularized notice of risk).

5. We need not, and do not, reach any of the parties' alternative arguments.

AFFIRMED.