NOT FOR PUBLICATION FILED

OCT 20 2023

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BANK OF NEW YORK MELLON, FKA No. 22-15612 The Bank of New York, as Trustee for the Certificateholders of the CWALK, Inc., D.C. No. Alternative Loan Trust 2006-OA6 2:17-cv-01918-RFB-VCF Mortgage Pass-Through Certificates, Series 2006-OA6,

MEMORANDUM*

Plaintiff-Appellant,

v.

SFR INVESTMENTS POOL 1, LLC,

Defendant-Appellee,

and

FOOTHILLS AT SOUTHERN

HIGHLANDS HOMEOWNERS

ASSOCIATION; et al.,

Defendants.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 Argued and Submitted October 2, 2023 Las Vegas, Nevada

Before: RAWLINSON and OWENS, Circuit Judges, and FITZWATER, ** District Judge.

Appellant Bank of New York Mellon (BONYM) appeals the district court’s

grant of summary judgment in favor of SFR Investments Pool 1, LLC (SFR).

“We review de novo a district court’s order granting summary

judgment. . . .” CitiMortgage Inc., v. Corte Madera Homeowners Ass’n, 962 F.3d

1103, 1106 (9th Cir. 2020) (citation omitted). We have jurisdiction under 28

U.S.C. § 1291, and we reverse.

After a foreclosure sale, Bank of America, N.A. (BANA)1 tendered $1,170 to

preserve its first deed of trust. The payment “represent[ed] the maximum 9 months

worth of delinquent assessments recoverable by an HOA against the first deed of

trust lienholder.”

1. Under Nevada law, “a first deed of trust holder’s unconditional tender

of the superpriority amount due results in the buyer at foreclosure taking the

property subject to the deed of trust.” Bank of Am., N.A. v. SFR Invs. Pool 1, LLC,

** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. 1 BANA was BONYM’s previous loan servicer and the client of Miles, Bauer, Bergstrom & Winters, LLP (Miles Bauer). Miles Bauer tendered the $1,170 to satisfy the superpriority portion of the lien.

2 427 P.3d 113, 116 (Nev. 2018) (en banc) (Diamond Spur). To meet this

requirement, the tender must include “nine months’ worth of common assessments

and any nuisance-abatement or maintenance charges.” CitiMortgage, Inc., 962

F.3d at 1106 (citations omitted). Thus, the tender from Miles Bauer of nine

months of assessment fees was sufficient to satisfy the superpriority portion of the

lien because the record does not reflect the existence of any nuisance-abatement or

maintenance fees. See Bank of Am., N.A. v. Arlington W. Twilight Homeowners

Ass’n, 920 F.3d 620, 623 (9th Cir. 2019).

2. Miles Bauer’s letter did not contain an impermissible condition. The

letter stated that the tender was a “non-negotiable amount and any endorsement of

[the] cashier’s check . . . will be strictly construed as an unconditional acceptance

on your part.” This language was virtually identical to language in the tender

approved in Diamond Spur. See 427 P.3d at 118.

3. SFR argues that Miles Bauer’s incorrect definition of the superpriority

amount (omitting a reference to nuisance-abatement and maintenance fees)

“supports invalidating the tender.” Because the Nevada Supreme Court has not

determined whether misstatement of the law in a tender offer constitutes an

impermissible condition, we must “predict how the state high court would resolve”

the issue. Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir. 2011), as

amended (citation and internal quotation marks omitted). The only Nevada case

3 that has addressed this issue rejects SFR’s argument. See Alliant Commercial,

LLC v. Bank of N.Y. Mellon, 443 P.3d 544 (Nev. 2019) (unpublished) (determining

that “a misstatement [of law] is not an impermissible condition as it does not

require anything of the HOA for the HOA to be able to accept the tender”) (citation

omitted); see also Employers Ins. Of Wausau v. Granite State Ins. Co., 330 F.3d

1214, 1220 n.8 (9th Cir. 2003) (noting that we may consider unpublished opinions

from a state appellate court).

REVERSED.

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