BANK OF AMERICA, N.A., Successor by Merger on behalf of BAC Home Loans Servicing, LP v. Auburn and Bradford at Providence Homeowners' Association;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF AMERICA, N.A., Successor by
Merger on behalf of BAC Home Loans
Servicing, LP
Plaintiff-Appellant,
v.
AUBURN AND BRADFORD AT
PROVIDENCE HOMEOWNERS'
ASSOCIATION; et al.,
Defendants-Appellees.
No. 20-16743
D.C. No. 2:16-cv-02761-APG
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada, Las Vegas
Andrew P. Gordon, District Judge, Presiding
Submitted December 4, 2023**
San Francisco, California
Before: BRESS and JOHNSTONE, Circuit Judges, and EZRA,*** District Judge.
Appellant Bank of America, N.A. (“BANA”) appeals the district court’s
* 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).
*** The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
FILED
DEC 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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dismissal of its claims against Auburn and Bradford at Providence Homeowners’
Association (“Auburn”) under Federal Rules of Civil Procedure 12(b)(6) and 56(a)
and Vern Elmer under Rule 56(a). BANA also seeks review of the district court’s
order denying it summary judgement, arguing that its tendered payment was
delivered to Auburn, which satisfied its superpriority lien and voided the HOA
sale.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review the
district court’s dismissal of Appellant’s complaint for failure to state a claim under
Rule 12(b)(6) de novo. Prodanova v. H.C. Wainwright & Co., 993 F.3d 1097,
1105 (9th Cir. 2021) (citing Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035
(9th Cir. 2002)). We likewise review the district court’s grant of summary
judgement de novo. Citicorp Real Est., Inc. v. Smith, 155 F.3d 1097, 1103 (9th
Cir. 1998). For the reasons stated below, we VACATE the district court’s
decision that BANA’s quiet title action is time-barred and REMAND for the
district court to consider the timeliness of BANA’s claim under U.S. Bank, N.A. v.
Thunder Properties, Inc., 503 P.3d 299 (Nev. 2022), a decision that was issued
after the district court ruled in this case.
Under Nevada law, a claim for declaratory relief is bound by Nevada’s four-
year catch-all statute of limitations. Nev. Rev. Stat. § 11.220; see Thunder Props.,
503 P.3d at 302. Although the statute does not specify when a specific cause of

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action begins to accrue, the Nevada Supreme Court has held that the statute of
limitations for a quiet title action based on a nonjudicial foreclosure sale does not
begin on the date of the foreclosure sale. Id. at 307.
According to Thunder Properties, “something more” than a notice of
adverse claim is needed to extinguish an existing lien. Id. at 307. “Something
more” requires an affirmative action akin to notice of disturbed possession, rather
than notification of an adverse claim. Id. Considering the facts in the record, the
only evidence of an act that could have extinguished BANA’s lien is the
foreclosure sale and filing of the foreclosure deed. Under Thunder Properties,
neither of these acts constitute the requisite “something more.” See id. at 306; SFR
Invs. Pool 1, LLC v. Bank of N.Y. Mellon, 509 P.3d 605 (Nev. 2022) (unpublished
table decision). However, we do not reach whether it is possible that Elmer and
Auburn may be able to show “something more” sufficient to satisfy Thunder
Properties on remand.
It was an error to rely solely on the HOA foreclosure sale to determine that
BANA’s claims were time-barred. As the district court did not have the
opportunity to consider Thunder Properties’ affirmative action requirement,
remand is appropriate.
VACATED and REMANDED. Each party shall bear its own taxable
costs.

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