behalf of bank of america in this appeal we will be asking this court to reverse a district court on a number of bases first the district court misapplied the substantive law of tender and the bad and made of state law separately and just as importantly the district court did not apply this court's binding precedent and born of valley finding that the receipt of actual notice by the bank essentially mooted the due process concern and this argument i would like to focus on the due process issue especially in light of the bank of new york mellon versus as a foreign investment and for you to that can i just ask you one question at the outset if we were to rule in your client's favor on the tender issue would we still we would still need to read each of the other issues you've raised or now i think if you were to rule in our favor on that issue you would afford us complete relief you would preserve the deed of trust that said we believe that the more prudent course is to address one valley because don't know how to refer to them but after the after the s f our case which deals with the notice issue why do we have a continuing issue on then i think you know a lot of supreme court said contrary to what our panel thought inborn valley nevada foreclosure statute incorporates other notice provisions your client got actual notice did it not us did so why are we worried about notice so there's  actually three parts to that question your honor well let me just make it easier for your client got notice absolutely i got notice the k y even even absent the subsequent decision the supreme court given that your client got notice why is notice an issue in this case at all it is for a couple of reasons first born vialli was a facial decision and so just as a as a matter of the district court temple cation of warren riley it should have just done the facial challenge what why what case do we have that says a statute unconstitutional because it doesn't provide for a notice but a party who got notices has standing to invoke that decision i would say that the born reversal was appropriate because the court had not considered the facial challenged so while it did not express fully enunciate that rule i think that's the only way to look at one ballot because again wells fargo did have actual notice in that case so then let's move on to the nevada supreme court's decision which says gee ninth circuit as a matter nevada law you got it wrong our statutes do provide for notice under these circumstances and the reason that valley in our view remains good law  it does require notice and indeed we all understand notice was given so they can overrule our understanding of federal world but surely they can tell us that we've got nevada law can't they and they can and they attempt to do that and the of the attempt to do that or did they do fair and fair point judge they do do that but they do that in an era way they cannot and in fact we invite into it we invited them to and they did not address the content requirements of the notice so essentially what they held and bank of new york mellon is that we were required the a choice was required to give us notice of what was sent to the homeowner a carbon copy of what was sent to the homeowner and the reason that that in our view does not cure the facial issue is that it does not disclose at the statute doesn't it does not require the a choice to disclose and in fact in this case the choice did not disclose that this was a super priority lien and what the amount of that lien was and in our view that's more than just an academic concern it's a real concern because even if you look at the notice in this case there was no way for the bank to determine whether a super party lien was a part of that lien you cannot simply assume that because and this is a function of the unique way that nevada based on the uniform act has split a choice between a super priority and some prior to component at the time that the foreclosure action begins you look backward nine months to assess whether there is any maintenance nuisance abatement and what  the normal budget assessments are but the bank doesn't get that notice the bank only gets a notice further on when the notice of default under the and purport of guidance from the bad supreme court so during that gap of time it's possible that we have seen cases not this case but other cases where the homeowner either enters into a payment plan or comes current on the assessment but doesn't pay the foreclosure expenses so there is a real possibility there that the super that that the super party lien at that point if there ever was one has been cured has has been paid and there is no way for the bank to know that may not be a way for the bank to know on the face of the notice but the way the real estate world works if you know this is that when you want to cure a lien you call up t there's a lien in leaving it up to you to determine with a lien holder how big it is and what's what's the unconstitutionality of that the heart of your honor is that the statute did not require the h away to respond in a manner that gives us what we think is constitutionally minimal notice and in fact in this case it did not what the but the question you just said was not constitutionally sufficient the judge who has just asked you why is that not constitutionally sufficient the reason why is because the first of all does not tell us we have a superpower doing and it does not tell us how much that's a priority lean consists of it it shifts the burden that you are correct but the bank can acquire and in fact didn't fire in this case and  and lucky for us we guessed right and paid the correct amount but that was simply because the bank took the initiative not because the statured required the h await the deliver the appropriate note of the in our view this constitutional gap that continues even after bank of new york mellon because it continues to shift the burden to the bank well again let's go back to the constitution what kay says that if you get notice that somebody else is claiming an interest in property then you have notice the notice must specify the precise amount of their claimed interest i'm not aware of a case that that that that speaks to that issue with that level of specificity however there are cases including some cases that we noted in our twenty eight j letter that you talk about minimum minimal content requirements and let me pursue just screws question the following sense if you are right the notice has to include the amount and has to include the correct amount so right yes your honor you know that's going to give us an awful lot of constitutional challenges because i can imagine the notices will be imprecise from time to time emphasize in a way that i actually want to hurt you very much because you can figure it out you can ask whatever it is but that's just opens up a world of due process challenges i don't understand the court's concern in that regard but i think it's important for the court to consider the opposite of that which was what was going on here which is they were given us no information i mean they were they were telling us how much was owed as a global amount but that is immaterial to what the bank has to pay because of the split lien concept and it put the onus of the bank to ask d h away and i think one of the practical implications of this which we have not discussed and that unfortunately is not raised in the facts of this case because this case we did get a response but we did have many cases where the bank received no response and a couple of those cases are actually denoted as related cases to this case and in our each of those cases the bank actually tendered their correct amount of nine months of dues correct if the bank if it tended to be in the bank if the bank tendered and usually that was bank of america well we got seven cases in front of us and we're only arguing one i think in every case in which there was a tender nobody disputes that it was for nine months of the  disputing any of these cases that the bank tendered at least nine months of assessments the dews that is correct there is no dispute about that so you didn't have any difficulty figuring that out and in this case and in these cases your honor the reason we didn't have difficulty is that the the association responded but the reason the statute remains unconstitutional in our view is that the h o a s not required to respond and there are cases not these cases now the cases submitted  today i'd like to just for your for your record for a record mention cases seventeen dash six sixteen seven zero six seventeen dash sixteen for if you like an advisory ruling from us on cases not in front of us no you're on our thinking  ruling would be improper i think it's just important for the court to understand the overall context of what was happening in nevada which is that oftentimes in practice the choice were not responding and leaving the banks with really no information and then this is can i stop you there because i don't understand why that poses a problem in light of whatever whichever one of those as a four decision we're talking about if you get a notice that says the homeowner is in default on the the dues and at least tells you what the amount per month is right and you can see that there are more than nine months in a rears why and it doesn't disclose anything else aren't you safe in just saying ok nine times wherever here you go and then even if you never get a response after that aren't you protected i think if if the notice did in fact identify right in my eyes or at least give some indication of what the monthly dues work i would agree with that but the h r way statute and as applied did not do that when we would get the notice we would have to ask for that additional information that's what happened in this case and that's all the statute requires ok that's what i'm confused about because i tell me if i'm wrong i thought in all of these cases that what i remember seeing is like sort of past due notice and it would just say you know  this month forty seven dollars for that month forty seven dollars and you could just look at the notice and see what the amount is what you're referring to judge is the ledger that the h away provided in response to the bank will i see and sell the bank and that's basically our point that this is still opt in if that information or at least just the monthly amount had been included on the face of the notice i would concede i would have no argument ok so help me then because you're right i'm thinking somehow what is the notice that you're talking about say because i don't remember what that looks like then the notice basically says it's directed to the homeowner doesn't mention the bank at all and it says simply this is the global amount that's old and that amount is not differentiated so we cannot tell from the face of the notice what amount of that is super priority or not what is collection cost but it's fees what you know there may be capital assessments that would be unique to that property and not assessed on for example the next door property and so all of that information is something the bank has to fish for on its own now i can you get a notice you get a notice that some amount is owed but it's not broken into the super priority and ordinary priority correct your honor i'm broke and and your view is that that's facially unconstitutional our view is the statute should have required not only disclosure of the super priority month but more importantly a statement that there was a super priority amount that our lien was innocent and i guess my question is why isn't it unconstitutional as applied in those circumstances where you can't determine what the super prayer i think it is unconstitutional  applied and that we did not reach that in this case because we know you learned you learned in numbers well not only that we learned the numbers at the time we had what we thought would be in during president under born valley and so we did not really need to reach that issue now if this case is remanded based on the tender we won't ever reach there but i do think that in cases where the h away did not respond the central holding of foreign valley which is that there is the process would open the door to an ass apply challenge and i think i think that is correct if it's ok but that would overrule burns valley holding that is facially unconstitutional i don't know if it would overrule it directly but that is the central holding in our view is that there's do that there's due process i think than of aspirin court has contradicted th court on whether we were supposed to get a carbon copy of the notice that went to the i want to say you're view is that even under the nevada supreme court's interpretation a notice you get is insufficient that's that's our view the notice we get is insufficient and if we opt in to try and because the supreme court has not recognized this court's view of the federal to process issue here down to thirty four seconds i am i'd like to reserve that for a bottle if that's ok we'll make sure you get a chance to respond good morning your honour's my name is karen hanks and i represent thomas jessop l l c and thomas jessop elsie series for contrary to the paperwork association council and i agree that i'll speak for ten minutes and then he'll have five but depending on the flow of the argument he's also agreed to can see the entirety of the time to me and i mean just the born valley argument since that's obviously been the issue that was addressed by mr stern and make something very clear that neither below or before you has bank of america made a content based facial challenge they waive that so our position is it is not before this court it wasn't before judge may hand that it's not before you now the born value panel only did a facial challenge in terms of class  persons i e who was entitle to notice under the statute the born value panel never analyzed an arrest one sixty from a content based application so that's an entirely new facial challenge that bank of america is arguing today and what they submitted in their twenty eight f letter which would be in violation of the rule under twenty they're serving an entirely new argument that my client never had an opportunity to respond to although if we were versed on the notice issue in light of what i r p s or if s p f or two they could raise it at the district court could they not not in this case your honor why not you could affirm the district court's order because while judge may hear in found that born valley applied at that all over on everything we vacate the judgment and we begin anew and they can they can raise whatever arguments they want to raise they may not be good ones in your view because they got actual notice but they're not waived forever i would submit that you wouldn't have to remand there be no basis you could affirm judge may hand because you got to the right result just probably for the wrong reason let's ask but let's we've we asked your friend about the weaker part of his case let let us ask you about what i think is the tough part of your case  no doubt in this case that nine months of dues were tendered correct nine months of calmness essence correct right why doesn't that discharge the super priority lee there's three reasons your honor the first reason is bank of america failed to prove what the actual super priority amount was like you could get you could to contest that to and they said they put in nine months of super prior and you never talk about never raising an argument you never below said look  got the wrong number it should have been fifty dollars more fifty dollars less so tell me why did they or did they not you know what the numbers did they did they or did they not tender nine months of the dues the other other things that might be in the super priority now you're saying well we might have thought of those and therefore the tender is no good don't you have some duty when somebody comes to you and says they want to discharge the lien to say here's the amount of it as opposed to just say here's the amount of the super priority and what's regular priority she sure but what you have to understand though is at the time of the letter for making america that was in april of two thousand and eleven and so when the ledger was sent in april under their what when i say there's no evidence of in the record i don't mean that they don't exist i mean that bank of america didn't meet its burden below this wasn't actually a trial this was a real judge they have the burden of demonstrating that the super printing already lean is limited to the only amounts that you identified is inside the super parity really no no no you're making a great notice argument for no no not just that's not what i'm saying what i'm saying is that when you have a ledger that you were saving in april of two thousand and eleven and then you have a sale that occurs some seventeen months later that's the facts of this case you cannot come into court is what judge me his biggest point of contention was you cannot come into court with the burden to say i've paid the super priority but i want to just tell you what i've paid and not tell you what the amount what your  shoes so there may be uncomfortable issues but you're standing in nobody ever says to the bank well it's two hundred seventy dollars whatever the number is in dues and we've got maintenance fees et cetera which are the association in bank of america's part to stay in communication with respect to what comprises of that lead merely the facts of this case however what judge me real point of contention was with bank of america was you had the burden to tell me what the super priority was that i could look at your payment of four hundred twenty three dollars and rule that that did satis what he did but he could look at their payment and say it covered nine months of dues could he not he could only look at it and say ok the right certainly so my question is under that circumstance don't you have some obligation once you get that tender to say it's insufficient it ought to include this other specific amount or can you just say as you did in this case no thanks no no it's not that it might have been sufficient at the time of may two thousand and eleven the problem is when a sale happens some seventeen months later but if your client code is accepted it your client their them be certain this is yours they should have accepted it when it was offered which is to say if it was sufficient when offered i don't care that you built up extra amounts later because of it you should have accepted it when offered the problem with that is if other amounts war incurred they carry a super priority amount and you could and you could file the new notice of lien at the time that they made that tender you had a notice out there which would have been fully discharged by the by their tender correct not fully just charge your honor it's the way they're made mince fees owed at the time they made their tender when they test when they when they tendered the due stephen did anybody say find you've taken care of the do use it may well be that will have maintenance fees or other things that are of super priority sometime between now and a foreclosure and we'll notify you about them did that communication occur with yes you know here's why the bank of america in their letter actually told the association that those portions of the lien was junior and that was going to be my secondary argument as to why it was invalid tender we know from the construct we call it the diamonds for k she said to me as if our cases are as of our three so the bank of america versus us of our case that dealt with tender they gave us the construct of what constitutes a valid tender nevada and it has to be unconditional has to be painful it has to be unconditional or a condition upon which you can sit at the time i think in washington seems to see my my difficulty here is we've got this with a game of gotcha going and say it's insufficient now because in the meantime we incurred some other expenses don't you have at least some obligation between then and time and then time to that time and the time with the foreclosure to say hey we've got another for two hundred dollars of super priority that may we're very well be but in this case when you say the gotcha was bank of america was playing the gotcha because they sent a letter to the association that said we want you as acceptance of this four hundred twenty three dollars check to page sixty nine through seventy if you look at their language of their letter and this is why i gave the attachments of the statute to walk us through it if you look at the very second paragraph of the letter is the bottom of page sixty nine excerpts the record sixty explain that we are only agreeing to pay you nine months and why you accept so i so i was correct in saying that they did not say that maintenance and other things would be junior they do that's what they're saying that now what they said  dues and so when they gave you a check for the dues they said you've given us a sheet with everything on it here's the check for the dues and everything else that you've listed is is junior no no actually they don't in their letter they say we're going to give you a check for four to distinguish themselves that's they want to help us of our three oh that's the third yes so i thought that case said that if all the bank if the bank is not told that there are additional nuisance and maintenance charges then the tender of the nine months is fully sufficient actually not quite your honor if you look at that case the sofar three case the reason why they were able to find in that case the payment of the nine months of common assessors was enough is if you look at page one read the cases holding very clearly that unless the h l a discloses to the bank some additional amount for nuisance or maintenance charges and unless the bank is affirmatively given that information then all the bank has to do is figure out what the nine months times whatever that fee is and tender that and then even if they condition the except you know even if they have a right to insist that you take this in for discharge of of the lane and that they're good to go that's where that's where i have a slight divergence your honor because in that case the only analysis being done with respect to where the letter was in permissibly conditional was at the time collection cost was an on developed issue and so the argument in that case was it was impermissibly conditional for bank of america and to sis that only nine months of common assessments were owed and it didn't include collection cos what the s a far three court did not do is analyze the letter from the context of asking  that might be priority items that were never disclosed to the bank i'm sorry i'm not really understating the trust in that that's a case that involves collection course yes that was a right right and a court says look you didn't tell them there were collection costs and therefore therefore the tender is ok we've got a case which may not involve collection costs and what you say there's nothing in the record about fees being owed and why someone was in the argument work actually in that as a far three case it was that collections cost morning clue did their work collection cost on the ledger that was sent to the bank in that case and they did the same thing they did in this case calculated what the nine month right i think you're right what the argument was though in that case was that it was in permissibly conditional because at the time the letter was sent back whether cost of collection were included in the super priority mao it was not there was not defense sided so it was impermissible for them to cut it out what i'm drawing distinction is the best supreme court i'm sorry my time is we're not going to keep talking what i'm trying to draw the distinction is the supreme court of nevada did not analyze what we're arguing here is that the tender itself was still invalid under nevada law because it conditions the acceptance of that check that you association will waive your right for ever if you accept this check regardless of nuisance of a minor means charges accrue you will waive your right to them by taking this check and that is not a condition upon which the bank can insist and that would be consistent with the s a four three decision you know what bothers me about the position of you but really the homeowners association has taken years to homeowners and still she is clearly entitled to the money but for some reason some mysterious reason they don't want to tell you tell the bank how much money and the reason they don't want to tell you come money they're not really from really interested in getting the do what they're interested in is getting those who are priority and draw or the homeowner's association for withholding the information is the amount owed strikes me as just allow all kinds of trickery no your honor if they they actually in all the cases i've seen and even the cases you have before that were are you today they get a can your honor i know what it will time i want to use your question please do you have to understand during the time period especially with all these cases two thousand and ten two thousand and eleven frankly everyone was arguing over even the interpretation of where there was a super priority and this bank this is before you here was not even conceding even though they were sending secret letters saying that it was a super priority they were saying litigation was a payment priority so i can assure you that there was no trickery involved with any of the associations it wasn't a matter of what is or is not the super priority nor was really even taking a position it  was you're saying you want to pay this here's the full account we'll give you the full amount but we're not taking a position on what partially you're always supposed to pay or what part another part is supposed to pay they just weren't takes so much so maybe that maybe a little i'm saying is that the you're now making in the future now that we understand clearly the difference between priority and super priority you're making will allow the trickery will incentivize the trickery no i no i don't think it will what i what i have the expectation is what the expectation lisa over the confines of the supreme court has given us with respect to tender is that it has to be condition unconditional or permissibly conditional and i think they would analyze it in a much different vein if court has left open that there might be circumstances where the association could show there was a good faith rejection that's what i was getting to it to at this time cost wasn't on the table no one understood if that was included no one or stood there was an argument over whether there was even a super priority portion so there really wasn't any trickery it was everyone was in a position to really understand and they were just giving all the information and not taking a legal position so that argument is on the table with respect to this a four three decision your hon e i thought the understanding was that if she took the entire time she took the entire time thousand and eleven at the end read opinion regarding costs and fees being included had not come down yet in fact there was a condominium commission decision that had been recognized in the district court that said that in fact the cost and fees for the for the the normal nine point was this was a one and done deal that the argument was being made that you've gotten one super priority leanin that said and if we accepted that tender under the non negotiable you accept everything in this letter provisions of it that would mean that at least arguably were waving our right to bring further should you have any obligation of commercial reasonable there's i know you had a brute you took a position that was broader than it turned and what the statute provided i guess but couldn't couldn't you at least have said to the bank by the way there's another hundred bucks bucks in fees if they would have paid it they were just trying to discharge a super priority lien and instead you just reject it is that that's what troubles me about this whole thing if there had been any attempted communication between the two sides if you had said to the bank gee give us three hundred dollars more because we think that's part of the super priority lee you would have gotten there any doubt you would done it but i ead you just reject and then show up fourteen months later and say well in the meantime we've incurred made news fees that there's just strikes me as not the way the railroads you run your own or commercial reasonableness in that context along those lines and i suppose what you're on are saying could that could be oppression i suppose but i don't think it was i think the good faith understanding every one of everyone at that time was the lean was a hole in the nevada supreme court was saying it's a whole lean and you either satisfy the lien you can then make a claim for credit back on it or you don't and so i mean i'm loath to say that there is no commercial reasonable but your didn't even respond by saying  position is that twenty eight hundred dollars is the entire amount of the super priority lead given given the fact that that the that it's such a small amount in compared to the first deed of trust my guess is that gets worked out and correct we did not respond or if we did we certainly don't have any evidence over and saw and it's not the record we did not respond to the tender it was simply that your honest correct on that ok thank you thank you for the time and let me say one thing just as a matter of if ever you are so lucky as to appear before the ninth circuit in the future splitting argument is always somewhat difficult in terms of running over in time and some judges some deciding judges are quite hard nosed about would you put two minutes on the clock rehearing filed in that case that the nevada supreme court considered they did some technical amendments to their original opinion and all of these maintenance and nuisance abatement issues were addressed in that case so it's not correct to say that there's still an issue out the the nuisance and maintenance but but how about your opponent's argument that if you try to say listen take the four hundred dollars or whatever you're offering and that's going to be in full satisfaction forever of any aspect of this lien that could be deemed super priority how does that protect them if subsequent to that they do incur nuisance or are maintenance fees in two ways judge first of all the the association has the ability to record a new notice of lena start the process over but  i do want to quibble with the argument or the suggestion that that's what the letter said the letter did not say that the letter simply said that the payment was for satisfaction of the bank's financial obligations to the h away which everybody understood was the super party lien incurred that ok i just forget maybe about the fact that this individual case but let's say in a typical case where you are offering to pay the four hundred dollars or whatever it is whatever it is and you basically put in the condition that you did here i'm just saying i think i understand the argument that well what's the homeowners association supposed to do if i accept this i guess that means that if we incur five thousand dollars to abate some nuisance later i'm not going to be able to get super priority status for that i think that the response of the judge is that in diamond spur or sofar three the supreme court considered that very issue it's not accurate to say that that was not presented there that and what the court determined was not only is there  no evidence on the record of the super priority but just as with the assessments with nuisance abatement you have to look backward so you do you start when the foreclosure started and look backward if there was no nuisance abatement or maintenance at that time it's dues and giving up all of those rights and again my answer to that and similar to my answer to judge watford is that the nevada supreme court essentially and diamonds for as a par three considered an identical letter when they considered identical letter but maybe not this argument and they did consider the argument because that's a far made that argument on its petition for a rehearing and it didn't go anywhere and and again if we're looking at the good faith rejection that the h way brought up what the court those cases is here the bank was entitled to insist on every condition if you describe it as a condition in the letter it said this is the amount there's really no information that it's and proper and correct  what i was going to ask it mentions another statute a nuisance abatement arises under one sixteen three ten three one two and the the letter does not mention that statute ok thank you thank you thank you very much