                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             JUL 22 2020
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


THE BANK OF NEW YORK MELLON,                     No.   19-15955
FKA Bank of New York, Trustee for the
Certificateholders of CWALT, Inc.,               D.C. No.
Alternative Loan Trust 2005-35CB,                2:17-cv-01056-GMN-CWH
Mortgage Pass-Through Certificates,
Series 2005-35CB,
                                                 MEMORANDUM*
              Plaintiff-Appellee,

 v.

7937 SONG THRUSH TRUST,

              Defendant-Appellant,

 and

ANDRE BEROUD; et al.,

              Defendants.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Gloria M. Navarro, District Judge, Presiding

                        Argued and Submitted July 14, 2020
                            San Francisco, California


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: IKUTA and HURWITZ, Circuit Judges, and TAGLE,** District Judge.

      7937 Song Thrush Trust (“Song Thrush”) appeals the district court’s denial

of its motion for relief from judgment under Rule 60(b)(4) of the Federal Rules of

Civil Procedure. We have jurisdiction under 28 U.S.C. § 1291.

      Even if the district court erred in holding that Song Thrush had the burden of

proving that service was improper, see SEC v. Internet Sols. for Bus. Inc., 509 F.3d

1161, 1165 (9th Cir. 2007), any error was harmless. The Bank of New York

Mellon (fka The Bank of New York) provided evidence establishing, under the

totality of the circumstances, that it substantially complied with Rule 4 of the

Federal Rules of Civil Procedure. See Direct Mail Specialists, Inc. v. Eclat

Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Counsel for Song

Thrush conceded that the owner of BTK Properties LLC is also the trustee for

Song Thrush, and the office manager for BTK’s registered agent agreed to accept

service of process on behalf of Song Thrush. Therefore, service was “made upon

an individual who stands in such a position as to render it fair, reasonable and just

to imply the authority on his part to receive service,” which is sufficient for

purposes of Rule 4. Id. (citation omitted). Because there is “an arguable basis for


      **
            The Honorable Hilda G. Tagle, United States District Judge for the
Southern District of Texas, sitting by designation.
                                           2
jurisdiction,” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271

(2010) (quotation omitted), the district court did not err in denying Song Thrush’s

Rule 60(b)(4) motion.

      AFFIRMED.




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