Nationstar Mortgage, LLC v. Sfr Investments Pool 1, LLC ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONSTAR MORTGAGE LLC, No. 19-15725
Plaintiff-Appellee, D.C. No.
2:15-cv-01705-MMD-PA
v.
SFR INVESTMENTS POOL 1, LLC, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Submitted February 5, 2021**
San Francisco, California
Before: SILER,*** IKUTA, and NGUYEN, Circuit Judges.
SFR Investments Pool 1, LLC appeals from the district court’s grant of
summary judgment for Nationstar Mortgage LLC. We have jurisdiction under
*
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).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
28 U.S.C. § 1291, review de novo, Fed. Home Loan Mortg. Corp. v. SFR Invs.
Pool 1, LLC, 893 F.3d 1136, 1144 (9th Cir. 2018), and affirm.
The case arises from a foreclosure sale to satisfy a homeowner association
(“HOA”) “superpriority” lien in Nevada. Nationstar holds a first deed of trust on
the property and sued the buyer, SFR, in 2015, asserting claims for quiet title and
injunctive and declaratory relief. If a bank tenders payment of the full
superpriority amount to an HOA before an HOA foreclosure sale, then the tender
discharges the superpriority lien. Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 427
P.3d 113, 121 (Nev. 2018), as amended (Nov. 13, 2018). Here, the district court
found no genuine dispute that the bank tendered payment of the full superpriority
amount to the HOA’s agent before the sale. Accordingly, the court entered
judgment in favor of Nationstar and declared SFR’s title subject to Nationstar’s
first deed of trust.
1. We need not decide whether the district court erred in determining
that the bank tendered a check for the full superpriority amount. We may affirm
the district court on “any” ground finding support in the record, Cairns v. Franklin
Mint Co., 292 F.3d 1139, 1155 n.14 (9th Cir. 2002), and in this case the record is
clear that 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). In Perla Del Mar, the Nevada
Supreme Court addressed futility in a case involving the same HOA agent—
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Nevada Association Services (“NAS”)—and the same law firm. Id. at 351. Perla
Del Mar affirmed the district court’s finding that even if the firm had tendered a
check for the full superpriority amount, it would have been rejected, and thus, the
bank was excused from making a formal tender. Id. at 351-52. The same logic
applies here. Testimony from the bank’s law firm and from the HOA agent’s Rule
30(b)(6) witness confirmed that NAS would have rejected a check for any amount
less than the full HOA lien of $2,670, a sum that far exceeds the superpriority
calculation advanced by either litigant. Accordingly, the bank was excused from
tendering the superpriority amount.
2. Given the futility of tender, SFR’s other challenges to the validity of
the bank’s tender are moot. Regardless, we agree with the district court, that the
letter accompanying the tender did not impermissibly exclude maintenance or
nuisance-abatement fees. In this case, there were no such fees, and therefore the
bank was entitled to exclude them from the superpriority calculation. The Nevada
Supreme Court considered the effect of a similar letter and tender that stated
endorsement of the check would be construed as “unconditional acceptance on
your part of the facts stated herein and express agreement that [the bank]’s
financial obligations towards the HOA in regards to the [property] have now been
‘paid in full.’” Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d at 118. The
court held that tender letters may include conditions upon which banks have a right
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to insist, which include the condition that “acceptance of the tender would satisfy
the superiority portion of the lien.” Id. The maintenance and nuisance-abatement
charges the bank disclaimed here were not included on the ledger.
AFFIRMED.
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