NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 23 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE BANK OF NEW YORK MELLON, No. 21-16041 FKA The Bank of New York, as Trustee for the Registered Holders of the CWABS, Inc., D.C. No. Asset-Backed Certificates,Series 2005-13, 2:16-cv-02400-MMD-VCF

Plaintiff-Appellee,

MEMORANDUM*

v.

MARIA LOYO-MORALES,

Defendant-Appellant,

and

NORTHGATE HOMEOWNERS

ASSOCIATION; NEVADA

ASSOCIATION SERVICES, INC.;

KIMBERLY TIBONI,

Defendants.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted April 13, 2022 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: BADE and LEE, Circuit Judges, and CARDONE,** District Judge.

Plaintiff-Appellee Bank of New York Mellon (“the Bank”) owns the deed of

trust to a property located at 5513 Oakwood Ridge Street, Las Vegas, Nevada

89130 (“the Property”).1 The Property’s prior owner fell into arrears on her

homeowners’ association (“HOA”) fees, leading to an HOA foreclosure. See Nev.

Rev. Stat. § 116.3116. Defendant-Appellant Maria Loyo-Morales purchased the

Property at the foreclosure sale. Loyo-Morales then rented the Property to an

unrelated tenant.

In October 2016, the Bank filed a complaint seeking to quiet title to the

Property. On October 20, 2016, the Bank attempted to serve Loyo-Morales by

leaving the summons and complaint at the Property with Loyo-Morales’s tenant.

Loyo-Morales never appeared, and the district court eventually entered a default

judgment against her, finding that the HOA foreclosure sale was void.

The Bank subsequently attempted to foreclose on the Property. But, shortly

before the scheduled foreclosure sale, Loyo-Morales appeared in the district court

to file a motion to set aside the default judgment and a motion for a temporary

** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. 1 For ease of reference, we refer to the beneficial owner of the deed of trust as the Bank, even when different entities held the deed of trust at relevant times.

2 restraining order and preliminary injunction. After briefing, the district court

denied Loyo-Morales’s motions, in part because, in the district court’s view, Loyo-

Morales was properly served under Federal Rule of Civil Procedure 4(e)(2)(B)

when the complaint and summons were left at the Property with Loyo-Morales’s

tenant. We have jurisdiction under 28 U.S.C. § 1291,2 and we reverse in part and

dismiss in part.

1. Loyo-Morales moved to set aside the default judgment under Rule 60(b)(4),

which provides that a final judgment may be set aside if “the judgment is void.”

Fed. R. Civ. P. 60(b)(4).

A final judgment is void, and therefore must be set aside under Rule

60(b)(4), if the court that considered the judgment lacked jurisdiction over the

parties. SEC v. Internet Sols. for Bus. Inc., 509 F.3d 1161, 1165 (9th Cir. 2007);

see also Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (“A federal court is

without personal jurisdiction over a defendant unless the defendant has been served

in accordance with Fed. R. Civ. P. 4.”). When a default judgment is void for lack

of service of process, the district court is “without its normal discretion” and must

2 In its answering brief, the Bank urges us to address the district court’s denial of its motion to expunge a lis pendens recorded on the Property. Because the Bank did not file a separate notice of appeal or cross appeal challenging this order, we lack jurisdiction to reach it. See Fed. R. App. P. 3(c); Manrique v. United States, 137 S. Ct. 1266, 1271 (2017); Smith v. Barry, 502 U.S. 244, 247–48 (1992).

3 set aside the judgment. Internet Sols., 509 F.3d at 1165. We review the denial of

Loyo-Morales’s Rule 60(b)(4) motion de novo. Id.

When a defendant challenges service, the plaintiff bears the burden of

establishing that service was valid under Rule 4. Brockmeyer v. May, 383 F.3d

798, 801 (9th Cir. 2004). This burden may shift to the defendant if she “had actual

notice of the original proceeding but delayed in bringing the motion until after

entry of default judgment.” Internet Sols., 509 F.3d at 1165. Likewise, an

affidavit of service attesting to personal service on the defendant constitutes a

prima facie showing that service was proper. Id. at 1166.

There is no evidence in the record that Loyo-Morales had actual notice of

the proceedings until long after the entry of default judgment. Moreover, there is

no prima facie evidence of personal service, because the affidavit of service

offered by the Bank attests not that Loyo-Morales was personally served, but only

that the summons and complaint were left with her tenant. Cf. id. at 1166.

Accordingly, the Bank had the burden to show service was proper. See id. at 1165;

Brockmeyer, 383 F.3d at 801.

Rule 4(e)(2)(B) provides that an individual may be served by “leaving a

copy of [the summons and of the complaint] at the individual’s dwelling or usual

place of abode with someone of suitable age and discretion who resides there.”

Fed. R. Civ. P. 4(e)(2)(B) (emphases added). There is no dispute that Loyo-

4 Morales’s tenant was a person of suitable age and discretion, and thus the district

court did not err in concluding that this part of the test was satisfied. The district

court erred, however, when it determined that the Property was Loyo-Morales’s

“dwelling” or “usual place of abode” under Rule 4(e)(2)(B).

Although a “person can have more than one dwelling house or usual place of

abode for purposes of” Rule 4, a dwelling or usual place of abode must be a place

where that person lives or resides. Stars’ Desert Inn Hotel & Country Club, Inc. v.

Hwang, 105 F.3d 521, 524 (9th Cir. 1997) (citation omitted) (concluding that

evidence supported that service was proper because “there was convincing

evidence that Hwang lived at the residence where service was effected”); see also

Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987) (as amended) (holding

that “service at a defendant’s place of employment is insufficient” to effect

personal service). All the evidence in the record indicates that Loyo-Morales did

not live at the Property in 2016, although she later moved there in 2020 or 2021.

The Property was therefore not her dwelling or usual place of abode, and Rule

4(e)(2)(B) was not satisfied by leaving the complaint and summons there with her

tenant. The default judgment accordingly must be set aside. The entry of default

and default judgment are vacated.

2. Loyo-Morales also appeals the district court’s denial of her motion for

injunctive relief. Because the default judgment is set aside as void, we dismiss

5 Loyo-Morales’s appeal of the denial of injunctive relief as moot.

Costs shall be taxed against the Bank.

REVERSED IN PART AND DISMISSED IN PART.

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