Bank of America, N.A. v. Bernini Dr Trust ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF AMERICA, N.A., No. 20-15584
Plaintiff-counter- D.C. No.
defendant-Appellee, 2:16-cv-00474-APG-BNW
v.
MEMORANDUM*
ALESSI & KOENIG, LLC; SOUTHERN
HIGHLANDS COMMUNITY
ASSOCIATION,
Defendants,
and
BERNINI DR TRUST,
Defendant-counter-claimant-
Appellant.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted March 12, 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: WALLACE, GOULD, and FRIEDLAND, Circuit Judges.
Appellant Bernini Drive Trust (Bernini) appeals from the summary
judgment in favor of appellee Bank of America, N.A. (BANA) in a quiet title
dispute following a Nevada foreclosure sale. Defendant Southern Highlands
Community Association (Southern Highlands), a homeowner’s association,
conducted the foreclosure sale through its foreclosure agent, defendant Alessi &
Koenig, LLC (Alessi) pursuant to Nevada Revised Statutes § 116.3116 (2012).
BANA commenced an action to determine whether its deed of trust survived the
sale, and Bernini, the buyer, filed a quiet title counterclaim, contending that the
sale extinguished BANA’s interest in the property. On cross-motions for summary
judgment, the district court ruled for BANA. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
First, we hold that BANA’s quiet title action was not time-barred. For the
reasons recently articulated by the Nevada Supreme Court in U.S. Bank Trust, N.A.
v. SFR Investments Pool 1, LLC (LSF8 Master Participation Trust), 461 P.3d 159(Nev. 2020) (unpublished), we reject Bernini’s argument that the three-year statute
of limitations in Nevada Revised Statutes § 11.190(3)(a) applies.1
1
Although it is unpublished, we consider this decision to be highly
persuasive. See U.S. Bank, N.A. v. White Horse Ests. Homeowners Ass’n, No. 19-
17033, --- F.3d ---, 2021 WL 419483, at *3 n.2 (9th Cir. Feb. 8, 2021). We do not
2
Second, we agree with the district court that tender was excused as a matter
of law under 7510 Perla Del Mar Ave Trust v. Bank of America, N.A. (Perla), 458
P.3d 348 (Nev. 2020) (en banc). Just like in Perla, Alessi had a known policy of
rejecting tender of the superpriority lien amount. At Alessi’s 30(b)(6) deposition,
David Alessi testified that during the period in question, the company had a policy
of not accepting tender checks for the superpriority lien amount from Miles, Bauer,
Bergstorm & Winters (Miles Bauer), BANA’s counsel in dozens of foreclosure-
related matters, including this one. Rock Jung, a former Miles Bauer attorney,
submitted a declaration that similarly described Alessi’s practice of rejecting
tender. Bernini argues on appeal that Alessi’s policy was to reject only tender
offers that came with conditional “restrictive language,” but the conditions Bernini
refers to are those limiting the offer to the superpriority amount, which is an
appropriate limitation under Nevada law. See Bank of Am., N.A. v. SFR Invs. Pool
1, LLC (Diamond Spur), 427 P.3d 113, 118 (Nev. 2018) (en banc) (“Although
Bank of America’s tender included a condition, it had a right to insist on the
condition.”). Accordingly, BANA’s interest in the property was preserved and
Bernini purchased the property subject to the deed of trust. Perla, 458 P.3d at
resolve what limitations period, if any, does apply. Cf. LSF8 Master Participation
Tr., 461 P.3d at *1 n.2.
3
352.2
Lastly, because we hold that BANA’s interest in the property was preserved
by operation of law, we need not reach Bernini’s arguments that it was a bona fide
purchaser or that BANA is not entitled to equitable relief. Cf. Diamond Spur, 427
P.3d at 121 (“A party’s status as a [bona fide purchaser] is irrelevant when a defect
in the foreclosure proceeding renders the sale void.”); Perla, 458 P.3d at 350 n.1
(“Because we conclude that the Bank’s obligation to tender was excused, we do
not address the Bank’s alternative argument that the sale should be set aside on
equitable grounds.”).
AFFIRMED.
2
We need not address Bernini’s argument that a factual question exists as to
whether Alessi received the letter from Miles Bauer. Proving that Alessi received
the letter is not required for BANA to meet its burden of establishing Alessi’s
known policy of rejecting tender.
4