Bank of America v. Hawthorn Woods Ave. Trust

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF AMERICA, NA, No. 19-16405
Plaintiff-Counter- D.C. No.
Defendant-Appellee, 2:15-cv-00684-RFB-NJK
v.
MEMORANDUM*
SILVER TURTLE HOMEOWNERS
ASSOCIATION,
Defendant,
and
HAWTHORN WOODS AVENUE TRUST,
Defendant-Counter-Claimant-
Appellant.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
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.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Defendant Hawthorn Woods Avenue Trust timely appeals the summary
judgment in favor of Plaintiff Bank of America, N.A., in this action concerning a
foreclosure sale by a homeowners association ("HOA") in Nevada. Reviewing de
novo, CitiMortgage, Inc. v. Corte Madera Homeowners Ass'n, 962 F.3d 1103,
1106 (9th Cir. 2020), we affirm.
The district court correctly held that decisions by the Nevada Supreme Court
foreclose Defendant's arguments. We are bound by the decisions of the Nevada
Supreme Court on questions of Nevada law, Albano v. Shea Homes Ltd. P’ship,
634 F.3d 524, 530 (9th Cir. 2011), so we do not address Defendant's challenges to
the correctness of those decisions.
Plaintiff's tender of the full amount of the superpriority portion of the HOA's
lien discharged that portion of the lien. Bank of Am., N.A. v. SFR Invs. Pool 1,
LLC (Diamond Spur), 427 P.3d 113, 117 (Nev. 2018) (en banc). As in Diamond
Spur, Plaintiff here sent a check for nine months' worth of assessment fees, $594,
and "the HOA did not indicate that the property had any charges for maintenance
or nuisance abatement." Id. at 118; see Bank of Am., N.A. v. Arlington W.
Twilight Homeowners Ass'n, 920 F.3d 620, 623 (9th Cir. 2019) (per curiam) ("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."). Accordingly,
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"[o]n the record presented, this was the full superpriority amount." Diamond Spur,
427 P.3d at 118.
The condition described in Plaintiff's tender letter was permissible. See id.
(approving of a materially identical condition). Nevada law did not require
Plaintiff to record its tender. Id. at 119–20. And the sale to Hawthorn Woods
Avenue Trust was void as a matter of law, so Defendant's arguments concerning
equity are irrelevant. Id. at 121; accord 7510 Perla Del Mar Ave Trust v. Bank of
Am., N.A., 458 P.3d 348, 350 n.1 (Nev. 2020) (en banc); SFR Investments Pool 1,
LLC v. Bank of N.Y. Mellon (CWALT), 455 P.3d 841 (Table), 2020 WL 407054,
*1, *2 n.4 (Nev. 2020) (unpublished).
Finally, we predict that the Nevada Supreme Court would agree with its
many unpublished decisions holding that an HOA's allegedly good-faith reason for
rejecting tender is "legally irrelevant." E.g., CWALT, 2020 WL 407054 at *1;
accord Restatement (Third) of Property (Mortgages) § 6.4(b)-(c) & cmt. c (1997);
see also Emps. Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220 n.8
(9th Cir. 2003) ("[W]e may consider unpublished state decisions, even though such
opinions have no precedential value."); Nev. R. App. P. 36(c)(2)–(3) (providing
that an unpublished decision may be cited "for its persuasive value" even though
the decision generally "does not establish mandatory precedent"). There are no
published decisions from the Nevada Supreme Court to the contrary.
3
We need not, and do not, address any alternative grounds for affirmance.
AFFIRMED.
4