BANK OF NEW YORK MELLON v. Blackhorse Homeowners Association, Defendant. (2020)
United States Court of Appeals, Ninth Circuit.
BANK OF NEW YORK MELLON, Plaintiff-Appellee, v. T-SHACK, INC., Defendant-Appellant, Blackhorse Homeowners Association, Defendant.
Decided: November 24, 2020
Before: RAWLINSON, HUNSAKER, and VANDYKE, Circuit Judges.
Jamie Combs, Attorney, Rex D. Garner, Natalie L. Winslow, Esquire, Attorney, Ariel Edward Stern, Esquire, Attorney, Akerman LLP, Las Vegas, NV, for Plaintiff-Appellee Chris V. Yergensen, Attorney, Black & LoBello, Las Vegas, NV, for Defendant-Appellant
T-Shack, Inc. appeals the district court's order granting summary judgment to Bank of New York Mellon (BNYM), finding that BNYM's predecessor preserved its deed of trust by tendering the superpriority amount prior to the Blackhorse Homeowners Association's (HOA) foreclosure sale of a residential property. We have jurisdiction pursuant to 28 U.S.C. § 1291, we review the summary judgment order de novo, Badgley v. United States, 957 F.3d 969, 974 (9th Cir. 2020), and we affirm.
BNYM sufficiently established that before the foreclosure sale, it tendered a $1,654.30 check to the HOA's foreclosure agent, Nevada Association Services, Inc., which covered nine months of unpaid HOA assessments and reasonable collection costs.1 T-Shack neither contested nor responded to this evidence below, and we decline to consider arguments raised for the first time on appeal. See Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008–09 (9th Cir. 2015). And notably, the HOA conceded below that the tender satisfied the superpriority amount. By operation of law, therefore, the tender extinguished the HOA's superpriority lien, and the property remains subject to BNYM's deed of trust. See Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 134 Nev. 604, 427 P.3d 113, 121 (2018) (en banc), as amended on denial of reh'g (Nov. 13, 2018). T-Shack purchased the property subject to BNYM's interest.
T-Shack's bona fide purchaser argument has been rejected by the Nevada Supreme Court. Id. BNYM was entitled to insist on the condition imposed in its tender, see Bank of Am., N.A. v. Arlington W. Twilight Homeowners Ass'n, 920 F.3d 620, 623 (9th Cir. 2019) (“Bank of America was entitled to insist on the condition ․ that acceptance would satisfy the HOA's superpriority lien.”), even if T-Shack had not forfeited its argument to the contrary by failing to raise it below. See Ramirez, 806 F.3d at 1008–09.
1. The tender was effectuated by counsel for BNYM's predecessor in the deed of trust, Bank of America.
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