Bank of America v. Trp Fund IV LLC ( 2020 )

FILED
NOT FOR PUBLICATION
NOV 27 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF AMERICA, NA, FKA No. 19-17080
Countrywide Home Loans Servicing, LP,
Successor by Merger to BAC Home Loans D.C. No.
Servicing, LP, 2:16-cv-00726-RFB-EJY
Plaintiff-counter-
defendant-Appellee, MEMORANDUM*
v.
BRECKENRIDGE AT MOUNTAINS
EDGE HOMEOWNERS ASSOCIATION;
ABSOLUTE COLLECTION SERVICES,
LLC,
Defendants,
and
TRP FUND IV LLC,
Defendant-counter-claimant-
3rd-party-plaintiff-
Appellant,
v.
TEMICKA C. COOLEY,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Third-party-defendant.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted November 17, 2020**
Pasadena, California
Before: RAWLINSON, HUNSAKER, and VANDYKE, Circuit Judges.
In this quiet title action, Appellant TRP Fund IV, LLC (TRP) appeals the
district court’s grant of summary judgment in favor of Appellee Bank of America,
N.A. (BANA). On October 23, 2020, we issued an order to show cause “as to why
this appeal should not be dismissed pursuant to Federal Rule of Appellate
Procedure 10(b)(2) because [TRP] failed to order and submit a transcript of the
September 11, 2019, hearing, which served as the opinion and order of the district
court in granting summary judgment in favor of Appellee.” TRP responded that a
transcript of the district court’s decision was unnecessary because resolution of this
appeal was limited to the district court’s application of Nevada law and that TRP
was not disputing the district court’s factual findings. TRP maintains that the
district court erroneously relied on Bank of America, N.A. v. Thomas Jessup, LLC
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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Series VII, 435 P.3d 1217 (Nev. 2019) (Jessup), in holding that BANA’s attempt to
tender delinquent homeowner’s association (HOA) assessments was legally
sufficient to preserve BANA’s deed of trust because the Nevada Supreme Court
reconsidered Jessup in Bank of America, N.A. v. Thomas Jessup, LLC Series VII,
462 P.3d 255 (Nev. 2020) (en banc) (unpublished) (Jessup II).
Contrary to its assertions, TRP’s failure to provide a transcript of the district
court’s decision impedes our review of the district court’s grant of summary
judgment. Without the benefit of the district court’s decision, we are unable to
fully ascertain the extent of the district court’s reliance on Jessup, as well as any
evidentiary support for the district court’s ruling. Moreover, TRP does not cite to
any case in which the Nevada Supreme Court or any other court has held that
reliance on Jessup compels reversal as a matter of law. As a result, dismissal of
TRP’s appeal is warranted. See Portland Feminist Women’s Health Ctr. v. Advocs.
for Life, Inc., 877 F.2d 787, 789 (9th Cir. 1989) (explaining that “[w]hen an
appellant fails to supply a transcript of a district court proceeding, we may dismiss
the appellant’s appeal or refuse to consider the appellant’s argument”) (citations
omitted).
Even if we were to rely solely on the record submitted by the parties, TRP
fails to demonstrate that the district court erred as a matter of law in granting
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summary judgment in favor of BANA. TRP maintains that the district court erred
in holding that BANA’s attempt to tender the delinquent assessments was legally
sufficient to preserve BANA’s deed of trust. However, the Nevada Supreme Court
recognizes that, even without legally sufficient tender of delinquent assessments, a
lender may “preserve[ ] its interest in the property” if any 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) (en banc); see also CitiMortgage, Inc. v. Corte Madera Homeowners
Ass’n, 962 F.3d 1103, 1109 (9th Cir. 2020) (articulating that “Jessup II did not
ultimately address the futility-of-tender issue, but the published opinion in Perla
Del Mar did”) (footnote reference omitted). In its denial of TRP’s motion for
reconsideration, the district court explained that “the Nevada Supreme Court’s
subsequent vacating of Jessup [did] not change [its] consideration of this case”
because “the Nevada Supreme Court has continued to confirm that in cases where a
court finds evidence that the HOA or HOA trustee has a policy of refusing to
accept checks for the superpriority portion of the lien, tender can be excused on the
basis of futility.” Because TRP has declined to provide a transcript of the district
court’s decision ostensibly delineating the evidence upon which the district court
relied, and TRP does not convincingly challenge the district court’s ruling
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concerning the futility of tender, we are unable to conclude that the district court
erred as a matter of law in granting summary judgment.
APPEAL DISMISSED.
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