FILED

NOT FOR PUBLICATION

FEB 20 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

U.S. BANK, as Trustee on behalf of No. 17-16415 Certificate Holders of Bear Stearns Asset- Backed Securities 1 Trust 2006-AC5, Asset- D.C. No. 2:15-cv-00786-RCJ-PAL Backed Certificates, Series 2006-AC5,

Plaintiff-counter-defendant- MEMORANDUM* Appellee,

v.

SANDSTONE CONDOMINIUMS

HOMEOWNERS ASSOCIATION;

NEVADA ASSOCIATION SERVICES,

INC.; UNDERWOOD PARTNERS, LLC,

Defendants,

and

NV EAGLES, LLC,

Defendant-counter-claimant- Appellant.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, Senior District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted January 23, 2020** San Francisco, California

Before: W. FLETCHER, R. NELSON, Circuit Judges, and SESSIONS,*** District Judge.

Appellant NV Eagles, LLC (“NV Eagles”) appeals the district court’s grant of

summary judgment in favor of appellee U.S. Bank on its action to quiet title to a

property in a common-interest community in Mesquite, Nevada. We have

jurisdiction under 28 U.S.C. § 1291, and we review de novo the district court’s grant

of summary judgment. See Barnes v. Chase Home Fin., LLC, 934 F.3d 901, 906 (9th

Cir. 2019). We affirm.

Through counsel, Bank of America, U.S. Bank’s predecessor-in-interest,

tendered a check to the agent of Sandstone Condominiums Homeowners Association

(the “HOA”) for $2,036.33. This more than satisfied the superpriority portion of the

HOA lien on the property, consisting of nine months’ worth of unpaid common

assessments ($1,440). NV Eagles concedes no maintenance or nuisance abatement

costs were incurred by the HOA for this property. See Bank of Am., N.A. v. Arlington

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable William K. Sessions III, Senior District Judge for the District of Vermont, sitting by designation. 2 W. Twilight Homeowners Ass’n, 920 F.3d 620, 623 (9th Cir. 2019) (citing Bank of

Am., N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d 113, 117–18 (Nev. 2018) (“Diamond

Spur”)); see also NEV. REV. STAT. § 116.3116. Accordingly, U.S. Bank’s interest in

the property was superior to the remainder of the HOA’s lien at the time of the

foreclosure sale, and NV Eagles purchased the property subject to the deed of trust.

See Diamond Spur, 427 P.3d at 116.

NV Eagles’ multiple attempts to distinguish Diamond Spur and avoid its

conclusions all fail. Its argument that the HOA had a good-faith basis for rejecting

the tender offer is without merit. A plain reading of Nevada Revised Statues

§ 116.3116 revealed that the superpriority portion of an HOA lien included “only

charges for maintenance and nuisance abatement, and nine months of unpaid

assessments.” See id. at 117. Bank of America’s tender offer was conditional, but it

was a condition on which it “had a legal right to insist.” See id. at 118. It is

inconsequential that Bank of America did not consider nuisance and abatement costs

in its tender—none were incurred.

Bank of America’s tender offer was not required to be recorded. See id. at

119–20. It did not act as a conveyance, and the lien was not discharged by an

instrument. See id. Moreover, NV Eagles’ status as a bona fide purchaser is

3 irrelevant because Bank of America’s valid tender rendered the HOA’s foreclosure

sale void. Id. at 121.

The district court did not reach the question of commercial unreasonableness,

and neither do we. See, e.g., Lounsbury v. Thompson, 374 F.3d 785, 790 (9th Cir.

2004). However, it bears noting that Bank of America was not required to take

additional measures to protect its interest. See Diamond Spur, 427 P.3d at 120–21.

AFFIRMED.

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