NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONSTAR MORTGAGE LLC, 

Plaintiff-counterdefendant-Appellee, 

 v. 

SFR INVESTMENTS POOL 1, LLC, 

Defendant-counter-claimantAppellant.

No. 21-16690 

D.C. No. 

2:15-cv-00583-RCJ-PAL 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Submitted January 11, 2023**

Pasadena, California

Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges.

SFR Investments Pool 1, LLC (SFR) appeals from the district court’s grant 

of summary judgment for Nationstar Mortgage LLC (Nationstar) in a quiet title 

and declaratory relief action involving residential property located in Las Vegas, 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JAN 24 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Nevada. We have jurisdiction under 28 U.S.C. § 1291, review de novo,

Berezovsky v. Moniz, 869 F.3d 923, 927 (9th Cir. 2017), and affirm.

This case arises from a foreclosure sale to satisfy a homeowners association 

(HOA) “superpriority lien” on the property. Nevada law provides that if a 

homeowner fails to pay a certain portion of HOA dues, the HOA is authorized to 

foreclose on a “superpriority lien” for that amount, extinguishing other liens and 

encumbrances on the delinquent property, including a previously recorded first 

deed of trust. See Nev. Rev. Stat. § 116.3116. However, a lender holding a first 

deed of trust may avoid extinguishment of its lien by tendering payment on the 

“superpriority” portion of the unpaid HOA dues. See Bank of Am., N.A. v. 

Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620, 622–23 (9th Cir. 2019); 

see also Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 427 P.3d 113, 116–17 (Nev. 

2018) (en banc) (Diamond Spur). 

On appeal, SFR argues that: (1) Nationstar had the burden of proving the 

superpriority amount at the time of sale and delivering a sufficient amount of 

money; (2) the delinquent assessment amount may include charges for 

maintenance and nuisance abatement; (3) there is no evidence that the tender was 

delivered; (4) if tender was delivered, it was impermissibly conditional; and (5) 

Nationstar’s argument that tender was excused as “futile” was improperly raised 

for the first time at summary judgment.
3 

None of SFR’s arguments are well taken. 

First, Nationstar tendered a sufficient amount of money. There is no dispute 

that Nationstar’s $1,200 tender exceeded the amount the borrower actually owed to 

the HOA. But SFR contends that Nationstar was required to tender $1,350, or nine 

months’ worth of HOA assessments. SFR is incorrect. The superpriority amount 

is limited to the amount of money the borrower actually owed, including “up to 

nine months of unpaid HOA dues.” SFR Invs. Pool 1 v. U.S. Bank, N.A., 334 P.3d 

408, 409 (Nev. 2014) (emphasis added). 

Second, even accepting that the superpriority portion of a HOA lien may 

include the costs of abatement or maintenance, see, e.g., Arlington W. Twilight 

Homeowners Ass’n, 920 F.3d at 622, SFR does not allege that there were any such 

costs, nor does it identify any evidence of such costs in the record. 

Third, the evidence does not permit a factual dispute as to whether tender 

was actually delivered. Nationstar provided the tender letter and an affidavit from 

the attorney who sent it; SFR has identified no contrary record evidence to create a 

factual dispute.

Fourth, tender was not impermissibly conditional. In Arlington West 

Twilight Homeowners Association, 920 F.3d at 623, we held that a tender offer 

with a letter similar to the one at issue here constituted a valid tender under Nevada 

law.
4 

Finally, even if tender were ineffective here (and it was not), Nationstar 

would still prevail because any tender would have been futile. The Nevada 

Supreme Court has held that tender may be excused where the HOA’s agent would 

have rejected tender. 7510 Perla Del Mar Ave., Tr. v. Bank of Am., N.A., 458 P.3d 

348, 350 (Nev. 2020) (en banc). Here, SFR does not meaningfully dispute the 

district court’s finding that the HOA’s agent, Nevada Association Services, had a 

policy of categorically rejecting tender payments. Instead, it contends that 

Nationstar’s futility argument could not be raised for the first time on summary 

judgment. But SFR ignores the procedural history of this case: following our 

earlier decision reversing and remanding this case to the district court, Nationstar 

Mortgage LLC v. SFR Investments Pool 1, LLC, 819 F. App’x 567 (9th Cir. 2020), 

and prior to the operative summary judgment order, the district court “allowed for 

limited discovery to argue new issues based upon changes in Nevada law over the 

past five years.” Under these circumstances, it was clearly appropriate for the 

district court to consider new arguments about the intervening changes in Nevada 

law concerning futility at the summary judgment stage. Cf. United States v. 

Aguilera-Rios, 769 F.3d 626, 631 (9th Cir. 2014). 

The district court’s grant of summary judgment in Nationstar’s favor is 

AFFIRMED.