NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 31 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARRINGTON MORTGAGE SERVICES, No. 19-16229

LLC,

D.C. No. Plaintiff-counter- 2:15-cv-01852-APG-BNW defendant-Appellee,

v. MEMORANDUM*

CACTUS SPRINGS AT FAIRFAX

VILLAGE HOMEOWNERS

ASSOCIATION; HAMPTON &

HAMPTON COLLECTIONS, LLC,

Defendants-cross- defendants,

and

SATICOY BAY, LLC SERIES 6709

BRICK HOUSE,

Defendant-counter-claimant- cross-claimant-Appellant.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted July 14, 2020** San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and TAGLE,*** District Judge.

In 2006, two individuals purchased a Nevada residence with a loan secured

by a deed of trust. Bank of America subsequently acquired the deed of trust. After

the homeowners failed to pay assessments to the Cactus Springs at Fairfax Village

HOA (“HOA”), the HOA mailed a Notice of Delinquent Assessment Lien on

September 20, 2011, and recorded a Notice of Default and Election to Sell against

the property on October 27, 2011. Bank of America’s attorneys obtained the HOA

account ledger identifying the assessments due and tendered a cashier’s check for

nine months of HOA dues. The HOA’s attorneys accepted the tender. Bank of

America later assigned the deed of trust to Carrington Mortgage Services, LLC

(“Carrington”).

The HOA recorded another Notice of Default on April 28, 2014. The default

was based on the September 20, 2011 Notice of Delinquent Assessment. The HOA

recorded a Trustee’s Deed Upon Sale for the property to Saticoy Bay, LLC (“Saticoy

Bay”) on June 30, 2015. Carrington brought this quiet title action against the HOA,

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Hilda G. Tagle, United States District Judge for the Southern District of Texas, sitting by designation.

2 its agent, and Saticoy Bay alleging the deed of trust still encumbered the property.

The district court entered summary judgment for Carrington. We have jurisdiction

over Saticoy Bay’s appeal pursuant to 28 U.S.C. § 1291 and affirm.

1. Carrington had standing to bring a quiet title action because it was assigned

the deed of trust. See Edelstein v. Bank of N.Y. Mellon, 286 P.3d 249, 260 (Nev.

2012). A quiet title action is simply a judicial determination of the claimed interests

in real property. See Chapman v. Deutsche Bank Nat’l Tr. Co., 302 P.3d 1103, 1106–

07 (Nev. 2013) (citing Nev. Rev. Stat. § 40.010). A deed of trust establishes the

holder’s interest in the property even if separated from the promissory note.

Edelstein, 286 P.3d at 259–60; see also In re Montierth, 354 P.3d 648, 650–51 (Nev.

2015). The holder of a deed of trust can preserve its interest by tendering to the HOA

the superpriority portion of the HOA’s lien, which is made up of nine months of

unpaid HOA dues and any unpaid charges for maintenance and nuisance abatement.

See Bank of Am., N.A. v. Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620,

623 (9th Cir. 2019) (per curiam).

2. Bank of America’s tender satisfied the superpriority portion of the HOA

lien and preserved the interest now held by Carrington. See id. The HOA’s ledger

did not list any charges for maintenance or nuisance abatement, so the tender of nine

months of HOA dues covered the entire superpriority amount. See id.

3 3. The lack of recording of the satisfaction and Saticoy Bay’s bona fide

purchaser (“BFP”) status did not alter the legal effect of the tender. See Bank of Am.,

N.A. v. SFR Invs. Pool 1, LLC (Diamond Spur), 427 P.3d 113, 118, 121 (Nev. 2018)

(en banc). “A party’s status as a BFP is irrelevant when a defect in the foreclosure

proceeding renders the sale void.” Id. at 121. “Tendering the superpriority portion

of an HOA lien does not create, alienate, assign, or surrender an interest in land.

Rather, it preserves a pre-existing interest, which does not require recording.” Id. at

119. The restarting of the foreclosure process with another Notice of Default in 2014

also did not affect the legal operation of Bank of America’s tender because the

second Notice of Default was based on the original September 20, 2011 Notice of

Delinquent Assessment. See Prop. Plus Invs., LLC v. Mortg. Elec. Registration Sys.,

Inc., 401 P.3d 728, 732 (Nev. 2017). “A foreclosure sale on a mortgage lien after

valid tender satisfies that lien is void, as the lien is no longer in default.” Diamond

Spur, 427 P.3d at 121.1

AFFIRMED.

1 Because we affirm the district court’s ruling on these grounds, we need not reach Saticoy Bay’s other arguments regarding the foreclosure process.

4