BANK OF NEW YORK MELLON, FKA The Bank of New York, as Trustee for the… v. Sfr Investments Pool 1, LLC

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF NEW YORK MELLON, FKA
The Bank of New York, as Trustee for the
Certificateholders of the CWALK, Inc.,
Alternative Loan Trust 2006-OA6
Mortgage Pass-Through Certificates, Series
2006-OA6,
Plaintiff-Appellant,
v.
SFR INVESTMENTS POOL 1, LLC,
Defendant-Appellee,
and
FOOTHILLS AT SOUTHERN
HIGHLANDS HOMEOWNERS
ASSOCIATION; et al.,
Defendants.
No. 22-15612
D.C. No.
2:17-cv-01918-RFB-VCF
MEMORANDUM*
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.
FILED
OCT 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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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

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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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