Bank of America, Na v. Kenneth Berberich ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF AMERICA, NA, FKA No. 19-15924
Countrywide Home Loans Servicing LP,
successor by merger to on behalf of BAC D.C. No.
Home Loans Servicing LP, 2:16-cv-00279-GMN-CWH
Plaintiff-Appellee,
MEMORANDUM*
v.
KENNETH BERBERICH,
Defendant-Appellant,
and
SUNRISE HIGHLANDS COMMUNITY
ASSOCIATION; ALESSI & KOENIG,
LLC,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Submitted December 11, 2020**
San Francisco, California
*
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).
Before: TASHIMA, TALLMAN, and MURGUIA, Circuit Judges.
Defendant-Appellant Kenneth Berberich appeals the district court’s grant of
partial summary judgment in favor of Plaintiff-Appellee Bank of America, N.A.
(“Bank of America”). Reviewing de novo, CitiMortgage, Inc. v. Corte Madera
Homeowners Ass’n, 962 F.3d 1103, 1106 (9th Cir. 2020), we affirm.
Bank of America tendered nine months of unpaid assessments to Sunrise
Highlands Homeowners Association (“Sunrise Highlands HOA”) to satisfy the
HOA’s superprioirty lien on the subject property and thereby establish Bank of
America’s superior interest as the holder of the first deed of trust. Berberich
argues that the district court erred in concluding Bank of America’s tender was
sufficient to protect Bank of America’s interest because it did not include a
“reserve” for continuing nuisance abatement charges and was impermissibly
conditional.
1. The superpriority portion of an HOA’s lien “includes only charges for
maintenance and nuisance abatement, and nine months of unpaid assessments.”
Bank of Am., N.A. v. SFR Invs. Pool 1, LLC (“Diamond Spur”), 427 P.3d 113, 117
(Nev. 2018) (en banc). “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” to satisfy the superpriority portion of the HOA’s lien. Bank of Am.,
N.A. v. Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620, 623 (9th Cir.
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2019). Because the ledger provided by Sunrise Highlands HOA did not indicate
that the property had incurred any charges for maintenance or nuisance abatement,
the tender of nine months assessments was sufficient to satisfy Sunrise Highlands
HOA’s superpriority lien.
2. Bank of America’s tender did not contain an impermissible condition. See
Diamond Spur, 427 P.3d at 118 (holding that a nearly identical letter
accompanying payment contained no impermissible conditions).
Therefore, the district court did not err in concluding Bank of America’s tender
was sufficient to satisfy Sunrise Highlands HOA’s superpriority lien and protect
Bank of America’s interest as the holder of the first deed of trust.
AFFIRMED.
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