NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF NEW YORK MELLON, FKA Bank of New York, as Trustee for the Certificateholders of CWALT, Inc. Alternative Loan Trust 2006

- OA18, Mortgage Pass

- Through Certificates, Series 2006

- OA18,
Plaintiff

- Appellee,

v. 5008 SIGNAL DRIVE TRUST,

Defendant

- Appellant,
and EUPERT DUNBAR; et al.,

Defendants. No

. 20

- 16388
D.C. No. 2:17

- cv - 00544

- APG

- DJA

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding Submitted December 6, 2021 * * San Francisco, California

* 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

DEC 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges. 5008 Signal Drive Trust (the Trust) appeals the district court’s summary judgment in favor of Bank of New York Mel l on (BNYM). The Trust contends that
the district court erred by finding that BNYM adequately te ndered to discharge a prior superpriority lien. We review the district court’s summary judgment decision
de novo , Jones v. Union Pac. R. R

. Co. , 968 F.2d 937, 940 (9th Cir. 1992) , and affirm

. 1. The district court correctly found that BNYM tender ed the superpriority
lien amount in full

. A valid tender for a superpriority 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 , 427 P.3d 113, 117 ( Nev. 201 8) (en banc). Where there is no evidence of nuisance abatement or maintenance fees at the time of tender, “a tender of nine months of [home owner’s association (HOA) ] dues
is sufficient.” Bank of Am., N.A. v. Arlington W. Twilight Homeowners Ass ’ n , 920
F. 3d 620, 623 (9th Cir. 2019). To afford superpriority status to a nuisance abatement charge that occurs after a tender offer, an HOA must restart the foreclosure process.
See Prop

. Plus Invs., LLC v. Mortg

. Elec. Registration Sys. , Inc. , 401 P.3d 728, 730

– 32 ( Nev. 2017) (en banc ). Here, on February 11, 2011, the agent responsible for making the tender,
Miles , Bauer , Bergstrom & Winters, LLP (Miles Bauer) , tendered a n amount for
nine months of HOA assessments. The alleged nuisance abatement charge did not3

appear on the HOA ledger until January 7, 2013. There was no new issu ance of a
notice of default after that date

. T he district court properly concluded that , without a new notice of default, the full superpriority amount include d only nine months of

assessments.
2. The district court also correctly found that no genuine issue of material fact
exists as to whether BNYM actually delivered the check for the tender amount to the
HOA

. Here, BNYM pr offered copies of the Miles Bauer tender letter and check, images of its case management system annotating receipt and rejection of the tender, and an affidavit attesting to the reliability of the case management system in tracking
these matters. The dist rict court correctly found that these materials established delivery of the tender amount. In its response, the Trust noted that certain types of evidence of tender delivery

— a runner slip, for example

— are absent from the record.
But the Trust “must do more than simply show that there is some metaphysical doubt as to the material facts” already in the record. Scott v. Harris , 550 U.S. 372, 380 (2007) (simplified).
3. Nor was t he tender impermissibly conditioned. The Trust contends that the
Miles Bauer letter contains an improper condition by categoriz ing certain nuisance
abatement charges as junior to the first deed of trust. But the Nevada Supreme Court has already held that identical language is not an impermiss ible condition. See4

Alliant Com., LLC v. Bank of N

. Y

. Mellon , 443 P.3d 544 , at *1 (Nev. 2019) (unpublished).
4. Finally, the Trust argues that t he district court was required to conduct an equitable analysis before finding a valid tender. But t he Nevada Supreme Court has
also rejected this argument. See Saticoy Bay LLC Series 133 McLaren v. Green Tree Servicing LLC , 478 P.3d 376, 379 ( Nev. 2020) (holding that a “ valid tender cures a default by operation of l aw

— that is, without regard to equitable considerations ” (simplified) ) ; see also SFR Invs. Pool 1 , 427 P.3d at 121 ( observing that a party ’ s
status as a bona fide purchaser “ is irrelevant when a defect in the foreclosure proceeding renders the sale void ”).
AFFIRMED.