BANK OF AMERICA, N.A., FKA Countrywide Home Loans Servicing, LP, Successor by Merger… v. Summit Real Estate Group, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF AMERICA, N.A., FKA
Countrywide Home Loans Servicing, LP,
Successor by Merger on behalf of BAC
Home Loans Servicing, LP; FEDERAL
NATIONAL MORTGAGE
ASSOCIATION,
Plaintiffs-Appellees,
v.
SUMMIT REAL ESTATE GROUP, INC.,
Defendant-Appellant,
and
ESTRELLA II HOMEOWNERS
ASSOCIATION; NEVADA
ASSOCIATION SERVICES, INC.,
Defendants.
No. 20-16624
D.C. No. 2:16-cv-02835-APG-DJA
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
FILED
NOV 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Argued and Submitted November 15, 2021
San Francisco, California
Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.
Defendant-appellant Summit Real Estate Group, Inc., (“Summit”) appeals
from the district court’s grant of summary judgment to plaintiffs-appellees Federal
National Mortgage Association (“Fannie Mae”), a regulated entity under the
conservatorship of the Federal Housing Finance Agency (“FHFA”), and Bank of
America (“BANA”), the loan servicer for Fannie Mae. On appeal, Summit
contends that the Nevada ancient-lien statute, codified at Nev. Rev. Stat.
§ 106.240, terminated Fannie Mae’s deed of trust securing a mortgage on a
residential property. The district court held that Nev. Rev. Stat. § 106.240 did not
terminate the deed of trust because BANA’s 2011 rescission of its 2009 notice of
default effectively canceled the acceleration of the mortgage loan.
We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Zetwick
v. Cnty. of Yolo, 850 F.3d 436, 440 (9th Cir. 2017), we affirm.
The Nevada Supreme Court recently held that, where a prior notice of
default accelerates a mortgage loan and makes it wholly due, a subsequent
rescission of that notice of default effectively cancels the acceleration of the
mortgage contained therein. Glass v. Select Portfolio Servicing, Inc., 466 P.3d 939
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(Table), 2020 WL 3604042, at *1 (Nev. July 1, 2020) (unpublished). Although
Glass is an unpublished opinion, under Nev. R. App. P. 36(c)(3) unpublished
decisions issued by the Nevada Supreme Court on or after January 1, 2016, can be
cited for their persuasive value.
Because the facts of Glass are similar to the undisputed facts here, we find it
persuasive. BANA recorded a notice of default that accelerated the mortgage in
2009, making it wholly due. In 2011, BANA recorded a rescission of election to
declare default, which “rescind[ed], cancel[ed] and withdr[e]w the [2009] Notice
of Default and Election to Sell.” Under Glass, BANA’s 2011 rescission effectively
canceled the acceleration of the mortgage by expressly revoking the 2009 notice of
default. The fact that BANA, in 2019, recorded a second rescission explicitly
revoking the acceleration of the mortgage does not mean that the first rescission
had not already canceled the acceleration under Glass. Nev. Rev. Stat. § 106.240
is thus inapplicable because the mortgage ceased to be wholly due in 2011.
The FHFA, as amicus curiae, argues that a federal statute of limitations that
provides the FHFA with at least six years to assert its claims preempts Nev. Rev.
Stat. § 106.240, to the extent that the latter extinguishes the FHFA’s otherwise
timely claims under the federal statute of limitations. See 12 U.S.C.
3

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§ 4617(b)(12)(A). Because we hold that Nev. Rev. Stat. § 106.240 is not
applicable to this case, we do not reach this question.
AFFIRMED.
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