U.S. Bank, Na v. Sfr Investments Pool 1, LLC

Opinion

FILED NOT FOR PUBLICATION DEC 22 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

U.S. BANK, N.A., Trustee for the No. 19-15349 Certificateholders of Harborview Mortgage Loan Trust 2005-08, Mortgage DC No. 2:16-cv-1385-GMN Loan Pass-Through Certificates, Series 2005-08, MEMORANDUM* Plaintiff-counter- defendant-Appellee,

v.

HERITAGE ESTATES HOMEOWNERS ASSOCIATION; NEVADA ASSOCIATION SERVICES, INC.,

Defendants,

and

SFR INVESTMENTS POOL 1, LLC,

Defendant-counter-claimant- Appellant.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted December 11, 2020** San Francisco, California

Before: TASHIMA, TALLMAN, and MURGUIA, Circuit Judges.

SFR Investments Pool 1, LLC (“SFR”), appeals from the judgment entered

in favor of U.S. Bank, N.A. after the district court granted summary judgment in

favor of U.S. Bank on SFR’s claim to quiet title. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

1. Applying de novo review, CitiMortg., Inc. v. Corte Madera

Homeowners Ass’n, 962 F.3d 1103, 1106 (9th Cir. 2020), we conclude that SFR

did not raise a triable issue of fact as to whether U.S. Bank properly tendered

payment of Heritage Estates Homeowners Association’s (“HOA”) superpriority

lien to Nevada Association Services (“NAS”). U.S. Bank produced evidence that

its estimate of HOA’s lien was accurate, including a statement of account on which

the Miles Bauer law firm relied to estimate the quarterly assessment amount, and

deposition testimony from representatives of both NAS and HOA confirming that

Miles Bauer’s estimate of the quarterly assessments was accurate. Regarding

delivery, U.S. Bank presented an affidavit and deposition testimony by attorneys

** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). 2 from Miles Bauer regarding the letters the law firm drafted and delivered to NAS

requesting proof of the amount of HOA’s superpriority lien and offering the tender,

as well as exhibits showing the letters, the tender of payment, and the check Miles

Bauer sent.

SFR’s argument that Miles Bauer did not contact HOA or NAS to verify the

superpriority amount thus must be rejected. Contrary to SFR’s contention, the

NAS representative did not testify that NAS did not receive Miles Bauer’s letter

and check, but that she could not verify whether or not it did. Her testimony also

established that there were no maintenance or nuisance abatement charges

outstanding.

U.S. Bank’s evidence established that it tendered the superpriority lien

amount. SFR questions the accuracy of U.S. Bank’s evidence, but it has not

presented any contrary evidence and thus has failed to raise a triable issue of fact

regarding the tender and amount of the superpriority lien.

2. Miles Bauer’s letter accompanying the tender did not violate the

statutory scheme by requiring HOA to agree to subordinate a portion of its lien.

See Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d 113, 117 (Nev. 2018)

(en banc) (“Diamond Spur”) (“A plain reading of this statute [§ 116.3116(2)]

indicates that the superpriority portion of an HOA lien includes only charges for

3 maintenance and nuisance abatement, and nine months of unpaid assessments.”);

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

620, 623 (9th Cir. 2019) (per curiam) (“The full superpriority amount consists of

nine months of unpaid HOA dues and any unpaid charges for maintenance and

nuisance abatement. If the HOA’s ledger does not show any charges for

maintenance or nuisance abatement, a tender of nine months of HOA dues is

sufficient.”) (internal citations omitted).

3. U.S. Bank’s tender was not impermissibly conditional. The letter

accompanying the tender correctly set forth the law and used the same language as

that found permissible by the Nevada Supreme Court. See Diamond Spur, 427

P.3d at 118. U.S. Bank had “a legal right to insist” that “acceptance of the tender

would satisfy the superiority [sic] portion of the lien, preserving [U.S. Bank’s]

interest in the property.” Id.

AFFIRMED.