BANK OF AMERICA NA LP BAC LP v. LLC (2020)

MEMORANDUM **

Defendant-Appellant Kenneth Berberich appeals the district court's grant of partial summary judgment in favor of Plaintiff-Appellee Bank of America, N.A. (“Bank of America”). Reviewing de novo, CitiMortgage, Inc. v. Corte Madera Homeowners Ass'n, 962 F.3d 1103, 1106 (9th Cir. 2020), we affirm.

Bank of America tendered nine months of unpaid assessments to Sunrise Highlands Homeowners Association (“Sunrise Highlands HOA”) to satisfy the HOA's superprioirty lien on the subject property and thereby establish Bank of America's superior interest as the holder of the first deed of trust. Berberich argues that the district court erred in concluding Bank of America's tender was sufficient to protect Bank of America's interest because it did not include a “reserve” for continuing nuisance abatement charges and was impermissibly conditional.

1. The superpriority portion of an HOA's lien “includes only charges for maintenance and nuisance abatement, and nine months of unpaid assessments.” Bank of Am., N.A. v. SFR Invs. Pool 1, LLC (“Diamond Spur”), 134 Nev. 604, 427 P.3d 113, 117 (2018) (en banc). “If the HOA's ledger does not show any charges for maintenance or nuisance abatement, a tender of nine months of HOA dues is sufficient” to satisfy the superpriority portion of the HOA's lien. Bank of Am., N.A. v. Arlington W. Twilight Homeowners Ass'n, 920 F.3d 620, 623 (9th Cir. 2019). Because the ledger provided by Sunrise Highlands HOA did not indicate that the property had incurred any charges for maintenance or nuisance abatement, the tender of nine months assessments was sufficient to satisfy Sunrise Highlands HOA's superpriority lien.

2. Bank of America's tender did not contain an impermissible condition. See Diamond Spur, 427 P.3d at 118 (holding that a nearly identical letter accompanying payment contained no impermissible conditions).

Therefore, the district court did not err in concluding Bank of America's tender was sufficient to satisfy Sunrise Highlands HOA's superpriority lien and protect Bank of America's interest as the holder of the first deed of trust.

AFFIRMED.