FILED

NOT FOR PUBLICATION

NOV 17 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONSTAR MORTGAGE, LLC, No. 20-17336

Plaintiff-Appellee, D.C. No. 2:15-cv-00196-APG-EJY v.

7505 JAVA SPARROW TRUST, MEMORANDUM*

Defendant-Appellant,

and

CLUB ALIANTE HOMEOWNERS

ASSOCIATION; NEVADA

ASSOCIATION SERVICES, INC.,

Defendants.

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

Submitted November 15, 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: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.

7505 Java Sparrow Trust (“the Trust”) appeals the district court’s grant of

summary judgment to Nationstar Mortgage, LLC. This case arises from a non-

judicial foreclosure sale to satisfy a homeowners’ association (“HOA”)

superpriority lien, conducted by the HOA’s agent, Nevada Association Services

(“NAS”). At the time of the foreclosure sale, Bank of America, N.A. (“BANA”)

was the authorized loan servicer for this property. Nationstar is the current

authorized loan servicer of the deed of trust that secured the original homeowners’

loan to purchase the property. Nationstar sought a declaration that the HOA sale

by NAS to the Trust did not extinguish the deed of trust securing the original

purchase.

Ordinarily under Nevada state law, when a bank tenders payment of the full

superpriority amount to an HOA before an HOA foreclosure sale, the tender

discharges the superpriority lien. Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 427

P.3d 113, 116 (Nev. 2018). The Nevada State Supreme Court recently held,

however, that when NAS had a known policy of rejecting tendered payments,

BANA was excused from making a formal tender. 7510 Perla Del Mar Ave Tr. v.

Bank of Am., N.A. (“Perla”), 458 P.3d 348, 351–52 (Nev. 2020).

2 In granting summary judgment to Nationstar, the district court in this case

relied on Perla and the evidence in the record in that case—which was also before

the court in this case. It showed that: (1) at the time of this sale, NAS had a policy

of rejecting checks for the superpriority portion of the lien; (2) BANA knew about

this policy; and (3) BANA was excused from making formal tender in this

instance.

Appellants contend that Perla established only that there was a policy and

BANA was aware of that policy between early 2012 and July 2013. In this case

NAS mailed the notice of delinquent assessment lien for the property in July 2010,

and the sale occurred in October 2011. Assuming for the sake of argument that

July 2010 through October 2011 is the relevant time period for this case, the record

contains ample evidence of NAS’s rejections of formal tenders and BANA’s

awareness of this policy during that time.

For example, David Stone—the founder, CEO, and owner of NAS—testified

that NAS’s policy was to reject formal tender from 2010–2014. Susan Moses—the

paralegal and custodian of records at NAS—confirmed in her testimony that NAS

refused formal tender sent by Miles, Bauer, Bengstrom & Winters, LLP (“Miles

Bauer”) in 2011. BANA’s counsel at the time, Miles Bauer, submitted affidavits

3 showing that NAS rejected formal tenders between March 2011 and November

2011.

A subsidiary of BANA filed a lawsuit in January 2011 against numerous

homeowners’ associations and their trustees, including NAS, asserting that it

tendered payments that would satisfy the superprority lien, but the trustees were

rejecting those payments. Thus not only did BANA know about NAS’s policy

during the relevant time frame, but one of its subsidiaries also took legal action to

attempt to address the problem.

Appellants also contend Perla does not control here because BANA made

no attempt to tender the superpriority portion of the lien for the property at issue in

this case. This argument is contrary to the opinion in Perla itself, because the

Nevada Supreme Court held that the tender requirement is waived when a party

entitled to payment had a known policy of rejecting such payments. Perla, 458

P.3d at 351. Accordingly, no attempted tender was required.

The district court correctly granted summary judgment to Nationstar.

AFFIRMED.

4