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

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIONSTAR MORTGAGE LLC, No. 19-15725

Plaintiff-Appellee, D.C. No. 2:15-cv-01705-MMD-PA v.

SFR INVESTMENTS POOL 1, LLC, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Submitted February 5, 2021** San Francisco, California

Before: SILER,*** IKUTA, and NGUYEN, Circuit Judges.

SFR Investments Pool 1, LLC appeals from the district court’s grant of

summary judgment for Nationstar Mortgage LLC. We have jurisdiction under

* 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). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 28 U.S.C. § 1291, review de novo, Fed. Home Loan Mortg. Corp. v. SFR Invs.

Pool 1, LLC, 893 F.3d 1136, 1144 (9th Cir. 2018), and affirm.

The case arises from a foreclosure sale to satisfy a homeowner association

(“HOA”) “superpriority” lien in Nevada. Nationstar holds a first deed of trust on

the property and sued the buyer, SFR, in 2015, asserting claims for quiet title and

injunctive and declaratory relief. If a bank tenders payment of the full

superpriority amount to an HOA before an HOA foreclosure sale, then the tender

discharges the superpriority lien. Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 427

P.3d 113, 121 (Nev. 2018), as amended (Nov. 13, 2018). Here, the district court

found no genuine dispute that the bank tendered payment of the full superpriority

amount to the HOA’s agent before the sale. Accordingly, the court entered

judgment in favor of Nationstar and declared SFR’s title subject to Nationstar’s

first deed of trust.

1. We need not decide whether the district court erred in determining

that the bank tendered a check for the full superpriority amount. We may affirm

the district court on “any” ground finding support in the record, Cairns v. Franklin

Mint Co., 292 F.3d 1139, 1155 n.14 (9th Cir. 2002), and in this case the record is

clear that tender would have been futile. 7510 Perla Del Mar Ave Tr. v. Bank of

Am., N.A., 458 P.3d 348, 351-52 (Nev. 2020). In Perla Del Mar, the Nevada

Supreme Court addressed futility in a case involving the same HOA agent—

2 Nevada Association Services (“NAS”)—and the same law firm. Id. at 351. Perla

Del Mar affirmed the district court’s finding that even if the firm had tendered a

check for the full superpriority amount, it would have been rejected, and thus, the

bank was excused from making a formal tender. Id. at 351-52. The same logic

applies here. Testimony from the bank’s law firm and from the HOA agent’s Rule

30(b)(6) witness confirmed that NAS would have rejected a check for any amount

less than the full HOA lien of $2,670, a sum that far exceeds the superpriority

calculation advanced by either litigant. Accordingly, the bank was excused from

tendering the superpriority amount.

2. Given the futility of tender, SFR’s other challenges to the validity of

the bank’s tender are moot. Regardless, we agree with the district court, that the

letter accompanying the tender did not impermissibly exclude maintenance or

nuisance-abatement fees. In this case, there were no such fees, and therefore the

bank was entitled to exclude them from the superpriority calculation. The Nevada

Supreme Court considered the effect of a similar letter and tender that stated

endorsement of the check would be construed as “unconditional acceptance on

your part of the facts stated herein and express agreement that [the bank]’s

financial obligations towards the HOA in regards to the [property] have now been

‘paid in full.’” Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d at 118. The

court held that tender letters may include conditions upon which banks have a right

3 to insist, which include the condition that “acceptance of the tender would satisfy

the superiority portion of the lien.” Id. The maintenance and nuisance-abatement

charges the bank disclaimed here were not included on the ledger.

AFFIRMED.