FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BANK OF AMERICA, N.A.,

Plaintiff-Appellant,

v.

ARLINGTON WEST TWILIGHT 

HOMEOWNERS ASSOCIATION;

THOMAS JESSUP, LLC; THOMAS 

JESSUP, LLC, SERIES IV; ALESSI &

KOENIG, LLC,

Defendants-Appellees.

No. 17-15796

D.C. No.

2:16-cv-00650-

JCM-CWH

OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted March 11, 2019 

San Francisco, California

Filed April 3, 2019

Before: William A. Fletcher, Paul J. Watford,

and Andrew D. Hurwitz, Circuit Judges.

Per Curiam Opinion
2 BOFA V. ARLINGTON WEST TWILIGHT HOA

SUMMARY*

Nevada Foreclosure Law

The 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.

The 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 America.

The 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. § 116.3116(2). 

Concerning 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 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BOFA V. ARLINGTON WEST TWILIGHT HOA 3

the HOA’s argument that it had a good-faith basis for 

rejecting the tender.

The 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 optin 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 this case. 

The 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. was not preempted by the federal 

mortgage insurance program.

COUNSEL

Ariel E. Stern (argued) and William S. Habdas, Akerman 

LLP, Las Vegas, Nevada, for Plaintiff-Appellant.

John William Ebert (argued) and David A. Markman, Lipson 

Neilson Cole Seltzer & Garin P.C., Las Vegas, Nevada, for 

Defendant-Appellee Arlington West Twilight Homeowners 

Association.
4 BOFA V. ARLINGTON WEST TWILIGHT HOA

Karen L. Hanks (argued) and Richard L. Tobler, Las Vegas, 

Nevada, for Defendants-Appellees Thomas Jessup LLC and

Thomas Jessup LLC, Series IV.

No appearance for Defendant-Appellee Alessi & Koenig 

LLC.

OPINION

PER CURIAM:

The State of Nevada has established a statutory scheme 

that grants a homeowners association (HOA) a lien with 

superpriority status on property governed by the association. 

See SFR Invs. Pool 1, LLC v. U.S. Bank, N.A., 334 P.3d 408, 

409–14 (Nev. 2014). The portion of the lien with 

superpriority status consists of the last nine months of unpaid 

HOA dues and any unpaid maintenance and nuisanceabatement charges. Nev. Rev. Stat. § 116.3116(2).1

 The rest 

of the lien, consisting of all other outstanding fees, does not 

get superpriority status. With a few exceptions, the 

superpriority portion is superior to all other liens on the 

property, including the first deed of trust held by the 

mortgage lender. This means that an HOA can extinguish 

the first deed of trust by foreclosing on its superpriority lien. 

See SFR Invs. Pool 1, 334 P.3d at 412–14.

This case involves residential real property in Las Vegas, 

Nevada. The property is a single-family home located in a 

 1 This opinion refers to the version of the Nevada provisions in effect 

in 2010–2012, when the foreclosure proceedings in this case took place. 

The Nevada legislature made significant amendments to these provisions 

in 2015.
BOFA V. ARLINGTON WEST TWILIGHT HOA 5

neighborhood governed by defendant Arlington West

Twilight Homeowners Association. The original owners of 

the home purchased the property in 2008 using a mortgage 

insured by the Federal Housing Administration (FHA). The 

deed of trust securing the loan was later assigned to plaintiff 

Bank of America, N.A.

In 2010, the original owners fell behind on their monthly 

HOA dues to Arlington West. Arlington West, acting 

through a trustee, defendant Alessi & Koenig, LLC, initiated 

foreclosure proceedings, recording a notice of delinquent 

assessment lien and a notice of default and election to sell. 

After receiving the notice of default, Bank of America asked 

Arlington West to identify the superpriority portion of its 

lien, seeking to pay that amount and thereby protect the 

bank’s first deed of trust. Arlington West instead only 

provided the bank with a ledger, which showed the total 

amount due to the HOA but did not specify the superpriority 

amount. Based on the ledger, Bank of America determined 

that the monthly HOA dues were $47 and calculated the 

superpriority amount as $423. The bank then tendered that 

amount to Arlington West. However, Arlington West 

rejected the payment as insufficient and held a foreclosure 

sale. Defendant Thomas Jessup, LLC, bought the property 

and later assigned its interest to defendant Thomas Jessup, 

LLC, Series IV.

Bank of America sued Arlington West, Alessi & Koenig, 

and the Jessup entities, asserting claims for: (1) quiet title 

and declaratory judgment against all defendants; (2) breach 

of Nev. Rev. Stat. § 116.1113 against Arlington West and 

Alessi & Koenig; and (3) wrongful foreclosure against 

Arlington West and Alessi & Koenig. The district court 

dismissed the claims for breach of § 116.1113 and wrongful 

foreclosure. The court later granted summary judgment to 
6 BOFA V. ARLINGTON WEST TWILIGHT HOA

Arlington West and Thomas Jessup, LLC, Series IV, on the 

quiet title claim. Bank of America appeals from the 

summary judgment.

I

In order to prevail on its quiet title claim, Bank of 

America must prove that its interest in the property is 

superior to that of every other party in the suit. See Chapman 

v. Deutsche Bank Nat’l Tr. Co., 302 P.3d 1103, 1106 (Nev. 

2013). The district court concluded that Bank of America 

did not establish that its tender of $423 was sufficient to 

satisfy Arlington West’s superpriority lien and thereby 

establish the bank’s superior interest as the holder of the first 

deed of trust. The court therefore granted summary 

judgment to defendants on the quiet title claim. We disagree 

and reverse.

The Nevada Supreme Court’s decision in Bank of 

America, N.A. v. SFR Investments Pool 1, LLC, 427 P.3d 113 

(Nev. 2018), issued after the district court ruled, resolves the 

question before us. In that case, the Nevada Supreme Court 

held that the holder of the first deed of trust can establish the 

superiority of its interest by showing that its tender satisfied 

the superpriority portion of the HOA’s lien. See id. at 117–

18. The full superpriority amount consists of nine months of 

unpaid HOA dues and any unpaid charges for maintenance 

and nuisance abatement. See id. 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. See id. at 118.

Under the Nevada Supreme Court’s decision, the bank’s 

tender plainly satisfied the superpriority portion of Arlington 

West’s lien. Based on the ledger provided by Arlington 

West, the bank tendered what it calculated to be nine months 
BOFA V. ARLINGTON WEST TWILIGHT HOA 7

of HOA dues ($423), and Arlington West does not dispute 

that this amount was correctly calculated. The ledger did not 

indicate that the property had incurred any charges for 

maintenance or nuisance abatement, which are the only other 

fees that could have been included in the superpriority 

amount. See id. The tender thus was sufficient. Therefore, 

Bank of America was entitled to insist on the condition it 

imposed in its tender, which was that acceptance would 

satisfy the HOA’s superpriority lien. See id.

Arlington West argues that it had a good-faith basis for 

rejecting the tender, even if the bank’s tender was sufficient 

and valid. According to Arlington West, it believed at the 

time of tender that the superpriority amount consisted of 

more than nine months of HOA dues and charges for 

maintenance and nuisance abatement. We reject that 

argument. As the Nevada Supreme Court has held, a plain 

reading of Nev. Rev. Stat. § 116.3116 indicates that the 

superpriority portion of the lien includes only those amounts. 

See id. at 117–19. Arlington West therefore had no basis for 

believing that Bank of America’s tender was insufficient.2

II

Relying on our decision in Bourne Valley Court Trust v. 

Wells Fargo Bank, NA, 832 F.3d 1154 (9th Cir. 2016), Bank 

of America argues that the Nevada HOA lien statute violates 

the Due Process Clause. In that case, we held that Nev. Rev. 

Stat. § 116.3116 et seq. is facially unconstitutional because 

it contains an impermissible opt-in notice scheme. Id. at 

1156. We interpreted the statutory scheme as requiring an 

 2 Arlington West also argues that it is not a proper party to the quiet 

title claim. The district court did not address that issue in the first 

instance, so we do not reach it here.
8 BOFA V. ARLINGTON WEST TWILIGHT HOA

HOA to provide notice to a junior interest holder about the 

HOA’s intent to foreclose only if the interest holder has 

requested notice. Id. at 1158. The district court in this case 

nonetheless rejected Bank of America’s due process 

argument on the ground that Arlington West had provided 

actual notice to the bank.

We affirm the district court’s ruling but for different 

reasons. The bank’s due process argument fails because the 

Nevada Supreme Court later rejected Bourne Valley’s 

interpretation of the Nevada statutory scheme. See SFR Invs. 

Pool 1, LLC v. Bank of N.Y. Mellon, 422 P.3d 1248 (Nev. 

2018). There, the Nevada Supreme Court clarified that Nev. 

Rev. Stat. § 116.31168(1) incorporates the mandatory notice 

requirements of Nev. Rev. Stat. § 107.090. Id. at 1250–53. 

Thus, an HOA must give notice to all junior interest holders 

regardless of any request. In light of that decision, Bourne 

Valley no longer controls the analysis, and we conclude that 

Nev. Rev. Stat. § 116.3116 et seq. is not facially 

unconstitutional on the basis of an impermissible opt-in 

notice scheme. Bank of America does not dispute that it 

received actual notice in this case. Its due process rights 

were therefore not violated.

III

Bank of America also argues that the Nevada lien statute 

is preempted by the federal mortgage insurance program. 

The district court rejected the bank’s argument on the ground 

that the FHA, which carries out the insurance program, is not 

a party to the case. As Bank of America correctly contends, 

the district court erred in suggesting that the FHA must be 

joined as a party before a preemption argument can be 

raised. Nevertheless, we agree with the Nevada Supreme 

Court’s decision in Renfroe v. Lakeview Loan Servicing, 
BOFA V. ARLINGTON WEST TWILIGHT HOA 9

LLC, 398 P.3d 904 (Nev. 2017), which held that Nev. Rev. 

Stat. § 116.3116 et seq. is not preempted.

The FHA insurance program allows the Department of 

Housing and Urban Development (HUD) to insure home 

loans made by private lenders. Two of the program’s goals 

are to help homeowners avoid foreclosure when possible and 

to protect the lender’s (and thus HUD’s) interest in the 

property in the event of a foreclosure. See Renfroe, 398 P.3d 

at 906–08; 24 C.F.R. §§ 203.501, 291.1(a)(2).

The Nevada statutory scheme does not conflict with 

these goals. Under Nevada law, a private lender can 

preserve its first deed of trust on a property and help 

homeowners explore alternatives to foreclosure by paying 

off the superpriority portion of the HOA’s lien. See Bank of 

Am., 427 P.3d at 117–18, 121. In fact, HUD has 

recommended use of this course of action to satisfy both the 

federal mortgage insurance program and state HOA lien 

statutes. See HUD, Mortgagee Letter 13-18, Updated 

Clarification Regarding Title Approval at Conveyance, 2013 

WL 2448985, at *1–2 (May 31, 2013); HUD, Mortgagee 

Letter 2002-19, Clarification Regarding Title Approval 

Issues, Property Condition at Conveyance, Administrative 

Offsets and a New Process for Lender Appeal of Conveyance 

Issues, 2002 WL 32083150, at *1–2 (Sept. 20, 2002). We 

therefore conclude that Nev. Rev. Stat. § 116.3116 et seq. is 

not preempted.

REVERSED and REMANDED.