NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 17 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE BANK OF NEW YORK MELLON, as No. 20-17338 Trustee for the Certificateholders of the CWALT, Inc., Alternative Loan Trust 2005- D.C. No. 41, Mortgage Pass-Through Certificates, 2:17-cv-02177-JCM-NJK Series 2005-41, FKA Bank of New York,

Plaintiff-counter- MEMORANDUM* defendant-Appellee,

v.

8933 SQUARE KNOT TRUST,

Defendant-counter-claimant- Appellant,

and

SPRING MOUNTAIN RANCH MASTER

ASSOCIATION,

Defendant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted November 15, 2021** San Francisco, California

Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.

8933 Square Knot Trust appeals from the district court’s grant of summary

judgment in favor of the Bank of New York Mellon (BNYM). BNYM’s

predecessor-in-interest financed the purchase of a residence located within a

homeowners’ association (HOA) in Nevada. The homeowner failed to pay required

dues, so the HOA foreclosed on the residence. See Nev. Rev. Stat. § 116.3102.

BNYM’s predecessor-in-interest tendered $535.50 to the HOA to satisfy the

superpriority portion of the lien, but the HOA rejected the tender and sold the

property to the Trust at the foreclosure sale. BNYM then brought this quiet-title

action. Applying Bank of America, N.A. v. SFR Investments Pool 1, LLC (Diamond

Spur), 427 P.3d 113 (Nev. 2018), the district court held that the foreclosure sale

did not extinguish BNYM’s deed of trust, and it granted summary judgment

accordingly. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The Trust argues that the district court lacked subject-matter

jurisdiction under 28 U.S.C. § 1332 because BNYM did not allege facts about the

citizenship of the Trust’s trustee. See Johnson v. Columbia Props. Anchorage, LP,

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 437 F.3d 894, 899 (9th Cir. 2006) (“A trust has the citizenship of its trustee or

trustees.”). We always have an obligation to determine our jurisdiction, so we

review this issue even though it was not raised below. Albrecht v. Lund, 845 F.2d

193, 194 (9th Cir. 1988). The Trust does not argue that it is not diverse to BNYM;

it argues only that its citizenship was not sufficiently established. But the Trust

admitted in its answer that it was not a citizen of New York, the State of which

BNYM is a citizen. The Trust has offered no evidence to suggest that its admission

was untrue, and the district court was entitled to rely on it. Railway Co. v. Ramsey,

89 U.S. (22 Wall.) 322, 327 (1875).

2. On the merits, the Trust argues that the district court erred in granting

summary judgment in favor of BNYM because BNYM did not sufficiently prove

tender of the superpriority portion of the lien. To prove tender, BNYM produced

(1) an affidavit from Miles, Bauer, Bergstrom & Winters, LLP (Miles Bauer), the

law firm that represented its predecessor-in-interest, explaining how it stored its

business records; (2) a screenshot of Miles Bauer’s recordkeeping system,

demonstrating both that the firm tendered payment to the HOA and that its check

was returned; (3) a letter from Miles Bauer to the HOA, asking for the ledger to

determine the superpriority portion of the lien; (4) the HOA ledger, reflecting a

monthly assessment rate of $59.50; (5) a letter from Miles Bauer to the HOA,

stating it would pay the HOA the equivalent of nine months of assessments,

3 totaling $535.50, to satisfy the superpriority portion of the lien under Nev. Rev.

Stat. § 116.3116; and (6) a copy of the check sent to the HOA. That evidence was

sufficient to carry BNYM’s burden to show that tender of the full superpriority

amount was made.

Alternatively, the Trust argues that the letter accompanying BNYM’s tender

contained a misstatement of law that rendered the tender impermissibly conditional

and thus invalid. Specifically, because the letter did not state that the superpriority

portion of the lien included unpaid maintenance and nuisance abatement fees, the

Trust argues that the letter purported to require the HOA to accept less than it was

entitled to under the statute. But the ledger did not reflect any unpaid maintenance

or nuisance abatement fees, and BNYM’s tender equaled nine months of unpaid

assessments. The tender therefore did not ask the HOA to accept less than it would

have otherwise been entitled to under law, so it was not impermissibly conditional.

See Diamond Spur, 427 P.3d at 118.

AFFIRMED.

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