Nationstar Mortgage, LLC v. Sfr Investments Pool 1, LLC

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIONSTAR MORTGAGE LLC, No. 18-15745

Plaintiff-Appellee, D.C. No. 2:15-cv-01992-LDG-CWH v.

SFR INVESTMENTS POOL 1, LLC, MEMORANDUM*

Defendant-Appellant,

GIAVANNA HOMEOWNERS ASSOCIATION,

Defendant-Appellee,

v.

BANK OF AMERICA, NA,

Cross-Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding

Argued and Submitted October 29, 2020 Portland, Oregon

Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. In this timely appeal pursuant to Federal Rule of Civil Procedure 54(b),

Defendant SFR Investments Pool 1, LLC, challenges the district court’s grant of

partial summary judgment in favor of Plaintiff and Counter-Defendant Nationstar

Mortgage, LLC, and Cross-Defendant Bank of America, N.A. Reviewing de novo,

CitiMortgage, Inc. v. Corte Madera Homeowners Ass’n, 962 F.3d 1103, 1106 (9th

Cir. 2020), we affirm.

Because Bank of America tendered payment for the full amount of the

superpriority lien, the foreclosure sale was void as a matter of law. Bank of Am.,

N.A. v. Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620, 622–23 (9th Cir.

2019) (per curiam); Bank of Am., N.A. v. SFR Invs. Pool 1, LLC (Diamond Spur),

427 P.3d 113, 117–19 (Nev. 2018) (en banc). We therefore do not reach the

district court’s two alternative grounds.

1. The amount of the tender was equal to or greater than the superpriority

portion of the lien. See Diamond Spur, 427 P.3d at 117 ("Valid tender requires

payment in full."). Bank of America’s check for $821.25 equaled nine overdue

assessments of $91.25 each. The ledger provided by the Giavanna Homeowners

Association "did not indicate that the property had incurred any charges for

maintenance or nuisance abatement, which are the only other fees that could have

been included in the superpriority amount. The tender thus was sufficient."

Arlington W., 920 F.3d at 623 (citation omitted).

2 2. The tender contained no impermissible conditions. See, e.g., Diamond

Spur, 427 P.3d at 118 (holding that a nearly identical letter contained no

impermissible conditions).

3. No genuine issue of material fact exists as to whether Bank of America’s

agent—the law firm of Miles, Bauer, Bergstrom & Winters LLP—actually

delivered the check. The district court permissibly rejected SFR’s evidentiary

objections to the affidavit of Douglas Miles and its attachments. See Lowry v.

City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (en banc) ("Evidentiary

rulings made in the context of summary judgment motions are reviewed for abuse

of discretion and can only be reversed if both manifestly erroneous and

prejudicial." (ellipsis and internal quotation marks omitted)). The affidavit, a copy

of the check, and a screenshot from the law firm’s case management software

demonstrated delivery. We are unpersuaded, on this record, that the lack of other

evidence creates a genuine issue of material fact.

4. We have considered SFR’s other arguments, but we find them

unpersuasive.

AFFIRMED.