Bank of New York Mellon v. 5008 Signal Drive Trust ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        DEC 8 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    BANK OF NEW YORK MELLON, FKA                    No.    20-16388
    Bank of New York, as Trustee for the
    Certificateholders of CWALT, Inc.               D.C. No.
    Alternative Loan Trust 2006-OA18,               2:17-cv-00544-APG-DJA
    Mortgage Pass-Through Certificates, Series
    2006-OA18,
    MEMORANDUM*
    Plaintiff-Appellee,
    v.
    5008 SIGNAL DRIVE TRUST,
    Defendant-Appellant,
    and
    EUPERT DUNBAR; et al.,
    Defendants.
    Appeal from the United States District Court
    for the District of Nevada
    Andrew P. Gordon, District Judge, Presiding
    Submitted December 6, 2021**
    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: WARDLAW, BRESS, and BUMATAY, Circuit Judges.
    5008 Signal Drive Trust (the Trust) appeals the district court’s summary
    judgment in favor of Bank of New York Mellon (BNYM). The Trust contends that
    the district court erred by finding that BNYM adequately tendered to discharge a
    prior superpriority lien. We review the district court’s summary judgment decision
    de novo, Jones v. Union Pac. R.R. Co., 
    968 F.2d 937
    , 940 (9th Cir. 1992), and affirm.
    1. The district court correctly found that BNYM tendered the superpriority
    lien amount in full. A valid tender for a superpriority 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, 
    427 P.3d 113
    , 117 (Nev. 2018) (en
    banc). Where there is no evidence of nuisance abatement or maintenance fees at the
    time of tender, “a tender of nine months of [homeowner’s association (HOA)] dues
    is sufficient.” Bank of Am., N.A. v. Arlington W. Twilight Homeowners Ass’n, 
    920 F.3d 620
    , 623 (9th Cir. 2019). To afford superpriority status to a nuisance abatement
    charge that occurs after a tender offer, an HOA must restart the foreclosure process.
    See Prop. Plus Invs., LLC v. Mortg. Elec. Registration Sys., Inc., 
    401 P.3d 728
    , 730–
    32 (Nev. 2017) (en banc).
    Here, on February 11, 2011, the agent responsible for making the tender,
    Miles, Bauer, Bergstrom & Winters, LLP (Miles Bauer), tendered an amount for
    nine months of HOA assessments. The alleged nuisance abatement charge did not
    2
    appear on the HOA ledger until January 7, 2013. There was no new issuance of a
    notice of default after that date. The district court properly concluded that, without
    a new notice of default, the full superpriority amount included only nine months of
    assessments.
    2. The district court also correctly found that no genuine issue of material fact
    exists as to whether BNYM actually delivered the check for the tender amount to the
    HOA. Here, BNYM proffered copies of the Miles Bauer tender letter and check,
    images of its case management system annotating receipt and rejection of the tender,
    and an affidavit attesting to the reliability of the case management system in tracking
    these matters. The district court correctly found that these materials established
    delivery of the tender amount. In its response, the Trust noted that certain types of
    evidence of tender delivery—a runner slip, for example—are absent from the record.
    But the Trust “must do more than simply show that there is some metaphysical doubt
    as to the material facts” already in the record. Scott v. Harris, 
    550 U.S. 372
    , 380
    (2007) (simplified).
    3. Nor was the tender impermissibly conditioned. The Trust contends that the
    Miles Bauer letter contains an improper condition by categorizing certain nuisance
    abatement charges as junior to the first deed of trust. But the Nevada Supreme Court
    has already held that identical language is not an impermissible condition. See
    3
    Alliant Com., LLC v. Bank of N.Y. Mellon, 
    443 P.3d 544
    , at *1 (Nev. 2019)
    (unpublished).
    4. Finally, the Trust argues that the district court was required to conduct an
    equitable analysis before finding a valid tender. But the Nevada Supreme Court has
    also rejected this argument. See Saticoy Bay LLC Series 133 McLaren v. Green Tree
    Servicing LLC, 
    478 P.3d 376
    , 379 (Nev. 2020) (holding that a “valid tender cures a
    default by operation of law—that is, without regard to equitable considerations”
    (simplified)); see also SFR Invs. Pool 1, 427 P.3d at 121 (observing that a party’s
    status as a bona fide purchaser “is irrelevant when a defect in the foreclosure
    proceeding renders the sale void”).
    AFFIRMED.
    4
    

Document Info

Docket Number: 20-16388

Filed Date: 12/8/2021

Precedential Status: Non-Precedential

Modified Date: 12/8/2021