and Submitted March 11, 2019
from the United States District Court for the District of
Nevada No. 2:16-cv-00650-JCM-CWH James C. Mahan, District
E. Stern (argued) and William S. Habdas, Akerman LLP, Las
Vegas, Nevada, for Plaintiff-Appellant.
William Ebert (argued) and David A. Markman, Lipson Neilson
Cole Seltzer & Garin P.C., Las Vegas, Nevada, for
Defendant-Appellee Arlington West Twilight Homeowners
L. Hanks (argued) and Richard L. Tobler, Las Vegas, Nevada,
for Defendants-Appellees Thomas Jessup LLC and Thomas Jessup
LLC, Series IV.
appearance for Defendant-Appellee Alessi & Koenig LLC.
Before: William A. Fletcher, Paul J. Watford, and Andrew D.
Hurwitz, Circuit Judges.
panel reversed the district court's summary judgment
entered in favor of a homeowners' association
("HOA") in a diversity action brought by Bank of
America, N.A., after the HOA conducted a foreclosure on
residential real property in Las Vegas, Nevada.
property was in a neighborhood governed by the defendant HOA,
and the original owners purchased the property using a
mortgage insured by the Federal Housing Administration. The
deed of trust securing the loan was later assigned to Bank of
State of Nevada grants HOAs a lien with superpriority status
on property governed by the association. The portion of the
lien with superpriority status consists of the last nine
months of unpaid HOA dues and any unpaid maintenance and
nuisance-abatement charges. Nev. Rev. Stat. §
Bank of America's quiet title claim, the panel held that
pursuant to the Nevada Supreme Court's decision in
Bank of America, N.A. v. SFR Invs. Pool 1, LLC, 427
P.3d 113 (Nev. 2018), the bank's tender of $423, based on
the ledger provided by the HOA, plainly satisfied the
superpriority portion of the HOA's lien. The panel
rejected the HOA's argument that it had a good-faith
basis for rejecting the tender.
panel rejected Bank of America's argument that the Nevada
HOA lien statute violated the Due Process Clause. The panel
held that Bourne Valley Court Trust v. Wells Fargo Bank,
NA, 832 F.3d 1154 (9th Cir., 2016) (holding that Nev.
Rev. Stat. § 116.3116 et seq. was facially
unconstitutional because it contained an impermissible opt-in
notice scheme), no longer controlled the issue in light of
the Nevada Supreme Court's decision in SFR Invs. Pool
1, LLC v. Bank of N.Y. Mellon, 422 P.3d 1248, 150-53
(Nev. 2018), which clarified that Nev. Rev. Stat. §
116.31168(1) incorporated the mandatory notice requirements
of Nev. Rev. Stat. § 1107.090. The panel concluded that
Nev. Rev. Stat. § 116.3116 et seq. was not
facially unconstitutional on the basis of an impermissible
opt-in scheme, and Bank of America received actual notice in
panel agreed with the Nevada Supreme Court's decision in
Renfroe v. Lakeview Loan Servicing, LLC, 398 P.3d
904 (Nev. 2017), which held that Nev. Rev. Stat. §
116.3116 et seq. ...