Bank of New York Mellon v. T-Shack, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2020
• Docket: 20-15228
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 24 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BANK OF NEW YORK MELLON, No. 20-15228

Plaintiff-Appellee, D.C. No. 2:15-cv-02241-APG-BNW v.

T-SHACK, INC., MEMORANDUM*

Defendant-Appellant,

and

BLACKHORSE HOMEOWNERS ASSOCIATION,

Defendant.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted November 17, 2020** Pasadena, California

Before: RAWLINSON, HUNSAKER, and VANDYKE, Circuit Judges.

T-Shack, Inc. appeals the district court’s order granting summary judgment to

* 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). Bank of New York Mellon (BNYM), finding that BNYM’s predecessor preserved

its deed of trust by tendering the superpriority amount prior to the Blackhorse

Homeowners Association’s (HOA) foreclosure sale of a residential property. We

have jurisdiction pursuant to 28 U.S.C. § 1291, we review the summary judgment

order de novo, Badgley v. United States, 957 F.3d 969, 974 (9th Cir. 2020), and we

affirm.

BNYM sufficiently established that before the foreclosure sale, it tendered a

$1,654.30 check to the HOA’s foreclosure agent, Nevada Association Services, Inc.,

which covered nine months of unpaid HOA assessments and reasonable collection

costs.1 T-Shack neither contested nor responded to this evidence below, and we

decline to consider arguments raised for the first time on appeal. See Ramirez v.

Cnty. of San Bernardino, 806 F.3d 1002, 1008–09 (9th Cir. 2015). And notably, the

HOA conceded below that the tender satisfied the superpriority amount. By

operation of law, therefore, the tender extinguished the HOA’s superpriority lien,

and the property remains subject to BNYM’s deed of trust. See Bank of Am., N.A.

v. SFR Invs. Pool 1, LLC, 427 P.3d 113, 121 (Nev. 2018) (en banc), as amended on

denial of reh’g (Nov. 13, 2018). T-Shack purchased the property subject to

BNYM’s interest.

1 The tender was effectuated by counsel for BNYM’s predecessor in the deed of trust, Bank of America.

2 T-Shack’s bona fide purchaser argument has been rejected by the Nevada

Supreme Court. Id. BNYM was entitled to insist on the condition imposed in its

tender, see Bank of Am., N.A. v. Arlington W. Twilight Homeowners Ass’n, 920 F.3d

620, 623 (9th Cir. 2019) (“Bank of America was entitled to insist on the condition

… that acceptance would satisfy the HOA’s superpriority lien.”), even if T-Shack

had not forfeited its argument to the contrary by failing to raise it below. See

Ramirez, 806 F.3d at 1008–09.

AFFIRMED.