BANK OF AMERICA v. Cortez Heights Homeowners Association, Defendants. (2019)

United States Court of Appeals, Ninth Circuit.

BANK OF AMERICA, N.A., Plaintiff-Appellee, v. Alvin SORIANO, Defendant-Appellant, Cortez Heights Homeowners Association, Defendants.

No. 18-16595

Decided: November 25, 2019

Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges. Darren T. Brenner, Attorney, Ariel Edward Stern, Esquire, Attorney, Akerman LLP, Las Vegas, NV, Richard Aaron Chastain, Stephen Colmery Parsley, Esquire, Bradley Arant Boult Cummings LLP, Birmingham, AL, for Plaintiff - Appellee Alvin Soriano, Pro Se

MEMORANDUM **

Alvin Soriano appeals pro se from the district court's summary judgment in Bank of America, N.A.’s diversity action alleging state law claims related to a foreclosure sale on real property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Progressive Cas. Ins. Co. v. Owen, 519 F.3d 1035, 1037 (9th Cir. 2008). We vacate and remand.

The district court granted summary judgment, relying on this court's decision in Bourne Valley Court Trust v. Wells Fargo Bank, NA, 832 F.3d 1154 (9th Cir. 2016), that the notice scheme under which the foreclosure sale was conducted was facially unconstitutional. However, after the district court's order was entered, this court in Bank of America, N.A. v. Arlington West Twilight Homeowners Association, 920 F.3d 620 (9th Cir. 2019), held that Bourne Valley’s analysis no longer controlled in light of the Nevada Supreme Court's decision in Bank of America, N.A. v. SFR Investments Pool 1, LLC, 134 Nev. 604, 427 P.3d 113 (2018). Because the district court did not have the benefit of the decision in Arlington West when it entered its order, we vacate summary judgment and remand for further proceedings. On remand, the district court should consider in the first instance alternate bases for summary judgment and may consider supplemental filings.

We do not consider documents not presented to the district court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

The parties shall bear their own costs on appeal.

VACATED and REMANDED.