FILED

NOT FOR PUBLICATION

NOV 16 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEUTSCHE BANK NATIONAL TRUST No. 19-17017 COMPANY, Trustee for the Holders of Harborview 2005-14 Trust, D.C. No. 2:16-cv-02174-KJD-NJK Plaintiff-Appellant,

v. MEMORANDUM*

2995 E. SUNSET RD. UN. 103 TRUST; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding

Argued and Submitted October 2, 2023 Las Vegas, Nevada

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. Plaintiff-Appellant Deutsche Bank National Trust Company, as Trustee for the

Holders of Harborview 2005-14 Trust (“Deutsche Bank”), brought this action against

Defendants-Appellees Pacific Sunset Village Homeowners Association, 2995 E.

Sunset Rd. Un. 103 Trust, Saticoy Bay LLC Series 2995 E. Sunset Rd. Unit 103

(“Saticoy Bay”), and Nevada Association Services, Inc. (“NAS”), alleging causes of

action for quiet title/declaratory judgment, breach of Nev. Rev. Stat. § 116.1113,

wrongful foreclosure, and injunctive relief. Deutsche Bank’s action related to a lien

that it allegedly held on certain real property (the “Property”) under a deed of trust that

secured the loan that financed the Property’s purchase. Through a foreclosure process

triggered by the borrower’s failure to pay homeowner association (“HOA”)

assessments, the Property was eventually sold to Saticoy Bay. On cross-motions for

summary judgment, the district court held, in pertinent part, that Deutsche Bank’s

action was not time-barred, but that Deutsche Bank had failed to show that it tendered

the superpriority portion of the lien, and, absent a valid tender, the foreclosure sale

extinguished Deutsche Bank’s lien. In its order and judgment, the district court

granted a declaration that title to the Property was vested in Saticoy Bay free and clear

of all liens and encumbrances, and that Deutsche Bank and defendants other than

Saticoy Bay had no estate, right, title, interest, or claim in the Property. Deutsche

2 Bank appeals the adverse order and judgment. We have jurisdiction under 28 U.S.C.

§ 1291, and we vacate and remand.

1. The district court did not commit reversible error in concluding that

Deutsche Bank’s action was not time-barred. The district court did not resolve

whether Deutsche Bank’s quiet title claim was timely under Nev. Rev. Stat. § 11.220’s

four-year catch-all provision or § 11.080’s five-year period for recovery of real

property because it determined that Deutsche Bank filed suit within four years from

the date the claim accrued. After the district court entered its order and judgment, the

Nevada Supreme Court decided U.S. Bank, N.A. as Trustee for the Specialty

Underwriting and Residential Finance Trust Mortgage Loan Asset-Backed

Certificates Series 2006-BC4 v. Thunder Properties, Inc., 503 P.3d 299 (Nev. 2022),

holding that “a claim seeking to quiet title by declaring the validity of a lien is subject

to a four-year statute of limitations,” as set out in the catch-all limitations period set

forth in Nev. Rev. Stat. § 11.220. Id. at 307. This statute of limitations begins to run

when “the lienholder receives notice of some affirmative action by the titleholder to

repudiate the lien or that is otherwise inconsistent with the lien’s continued existence.”

Id. at 306. Even if it is assumed that the HOA foreclosure sale triggered the

limitations period (which is the earliest date the statute of limitations arguably could

have begun to run), Deutsche Bank filed suit within four years of the foreclosure sale.

3 Deutsche Bank’s quiet title claim was therefore timely, and the district court did not

commit reversible error.

2. The district court found that Deutsche Bank made no showing that it had

tendered the superpriority portion of the lien. Since then, however, the Nevada

Supreme Court has identified a “generally accepted exception” to the tender rule: the

holder of a first deed of trust is not obligated to tender payment if the tender would be

rejected—that is, if the tender would be futile. 7510 Perla Del Mar Ave. Tr. v. Bank

of Am., N.A., 458 P.3d 348, 351 (Nev. 2020). As the district court did not have a

chance to consider whether Deutsche Bank has met this exception to the tender

requirement, we remand for the district court to consider the issue in light of Perla.

* * *

The district court’s judgment is VACATED, and this matter is REMANDED

for further proceedings. Each party shall bear its own taxable costs.

4