130 Nev., Advance Opinion 68
IN THE SUPREME COURT OF THE STATE OF NEVADA
FEDERAL DEPOSIT INSURANCE No. 59309
CORPORATION, AS RECEIVER FOR
COMMUNITY BANK OF NEVADA,
Appellant,
FILED
vs. OCT 3 0 2014
JAMES M. RHODES,
Respondent. CLEW(r6;i!-V4gaR
By
DLPAP(
Appeal from a district court order dismissing a deficiency
judgment action as time barred. Eighth Judicial District Court, Clark
County; Jessie Elizabeth Walsh, Judge.
Affirmed in part, reversed in part, and remanded.
Smith Larsen & Wixom and Michael B. Wixom and Katie M. Weber, Las
Vegas,
for Appellants.
Santoro Whitmire and Nicholas J. Santoro and Jason D. Smith, Las
Vegas,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, SAITTA, J.:
Under the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 (FIRREA), appellant Federal Deposit Insurance
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Corporation (the FDIC) acts as a "conservator or receiver" for failed
financial institutions. 12 U.S.C. § 1821(d)(2)(A) (2012). FIRREA extends
the time period for the FDIC, in its capacity as the failed institution's
conservator or receiver, to bring a contract claim that has otherwise been
barred by a state statutory time limitation:
[T]he applicable statute of limitations with regard
to any action brought by [the FDIC] as conservator
or receiver shall be-
(i) in the case of any contract claim,
the longer of—
(I) the 6-year period beginning
on the date the claim accrues; or
(II) the period applicable under
State law.
12 U.S.C. § 1821(d)(14)(A) (2012) (hereinafter the FDIC extender statute).
This statute has been applied to govern the timeliness of the deficiency
judgment suits that are brought by the FDIC. See, e.g., Cadle Co. v. 1007
Joint Venture, 82 F.3d 102, 104 (5th Cir. 1996) (in the context of a
deficiency judgment suit, indicating that the FDIC extender statute
governs the timeliness of "a suit by the FDIC to collect on a note"); Twenty
First Century Recovery, Ltd. v. Mase, 665 N.E.2d 573, 576-78 (Ill App. Ct.
1996) (concluding that the FDIC extender statute governed the timeliness
of an action for a deficiency judgment); Trunkhill Capital, Inc. v. Jansma,
905 S.W.2d 464, 465-68 (Tex. App. 1995) (concluding that the FDIC
extender statute governed an action for a deficiency judgment). However,
Nevada provides for a shorter six-month time limitation for deficiency
judgment actions under NRS 40.455(1), which states that
upon application of the judgment creditor or the
beneficiary of the deed of trust within 6 months
after the date of the foreclosure sale or the
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trustee's sale held pursuant to NRS 107.080,
respectively, and after the required hearing, the
court shall award a deficiency judgment to the
judgment creditor or the beneficiary of the deed of
trust. . . .
Here, the FDIC filed its claim for a deficiency judgment after NRS
40.455(1)'s six-month deadline but within the FDIC extender statute's six-
year time limitation. The district court dismissed the FDIC's deficiency
judgment claim as untimely. It concluded that the FDIC needed but failed
to meet NRS 40.455(1)'s deadline regardless of the FDIC extender statute.
In this matter, we address whether the FDIC extender statute
preempts NRS 40.455(1)'s six-month time limitation. We conclude that it
does. The plain meaning of the FDIC extender statute clearly and
manifestly mandates that its six-year time limitation governs the
timeliness of the FDIC's deficiency-judgment action if that time limitation
is longer than "the period applicable under State law." 12 U.S.C. §
1821(d)(14)(A) (2012). Thus, the FDIC extender statute expressly
preempts NRS 40.455(1)—the period applicable under Nevada law—
regardless of whether the state statute is a statute of limitations or repose.
Therefore, because the FDIC filed its deficiency judgment action within
the FDIC extender statute's six-year time limitation, the district court
erred in dismissing the FDIC's deficiency-judgment action as untimely.
FACTS AND PROCEDURAL HISTORY
In 2005, under a promissory note secured by a deed of trust,
Community Bank of Nevada loaned $2,625,000 to Tropicana Durango
Ltd., of which respondent James M. Rhodes was a general partner. The
deed of trust encumbered a piece of Tropicana Durango's real property for
the benefit of Community Bank. Additionally, Rhodes executed a
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guarantee agreement, under which he guaranteed the repayment of
Tropicana Durango's debt to Community Bank.
In August 2009, the Nevada Financial Institutions Division
closed and took possession of Community Bank and appointed the FDIC
as "receiver/liquidator" for Community Bank. At this time, Tropicana
Durango was in default on its 2005 loan. In November 2009, the FDIC
recorded a "Notice of Default and Election to Sell," and a trustee's sale was
held for the real property that was secured by the deed of trust. The FDIC
purchased the real property with a credit bid of $750,000.
In February 2011, after six months but within six years of the
trustee's sale, the FDIC filed a suit for a deficiency judgment against
Rhodes to recover the money still owed on the 2005 loan after the trustee's
sale. In so doing, it contended that its deficiency judgment action was
timely because the FDIC extender statute permitted it to bring the action
within six years of the date on which it could first bring its deficiency
judgment claim, which was the date of the trustee's sale. See Sandpointe
Apartments, L.L.C. v. Eighth Judicial Dist. Court, 129 Nev. , 313
P.3d 849, 856 (2013) ("The trustee's sale marks the first point in time that
an action for deficiency can be maintained . . . .").
Rhodes filed a motion to dismiss, asserting that NRS 40.455(1)
was a statute of repose and that its six-month time limitation for
deficiency judgments, which started from the date of the trustee's sale,
barred the FDIC's complaint that was filed beyond that time period. In so
asserting, Rhodes primarily relied on Resolution Trust Corp. v. Olson, 768
F. Supp. 283, 285-86 (D. Ariz. 1991), which provided that a statute like the
FDIC extender statute could not elongate the time to file an action that
was otherwise barred by a state statute of repose.
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The district court granted Rhodes' motion and dismissed the
FDIC's complaint in its entirety. In so doing, it concluded that "the 6
month period after the date of the foreclosure sale or the trustee's sale to
bring an application for a deficiency judgment under NRS 40.455 is a
substantive statute of repose" with which the FDIC needed but failed to
comply. This appeal followed.
DISCUSSION
The FDIC argues that the district court erred in dismissing its
claim for a deficiency judgment, contending that the FDIC extender
statute preempts NRS 40.455(1), regardless of whether the latter is a
statute of limitations or repose. In addition, the FDIC specifically contests
Rhodes' reliance on Olson for his motion to dismiss the deficiency
judgment claim, asserting that the Olson court erroneously interpreted
other authorities for the conclusion that federal statutes cannot control
over state statutes of repose.
Rhodes responds that the district court did not err in
determining that NRS 40.455(1) was a statute of repose that barred the
FDIC's complaint. As to the FDIC's preemption arguments, Rhodes
argues that the FDIC waived these arguments because it did not assert
them before the district court. In the alternative, he contends that if the
preemption issue was not waived, NRS 40.455(1) is a statute of repose
that is not preempted by the FDIC extender statute because the latter's
statutory language only mentions a statute of limitations and not a
statute of repose. Regarding Olson, Rhodes asserts that the Olson court
correctly concluded that a federal agency must comply with state statutes
that create substantive conditions for an action under state law.
Accordingly, Rhodes maintains that MRS 40.455(1)'s six-month time
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limitation is a condition precedent for a deficiency judgment action and, as
a result, it is a statute of repose that imposes a substantive time limitation
that the FDIC failed to meet.
The parties raise issues that concern the preemption doctrine
and the meaning of a federal statute and a state statute. Thus, de novo
review governs our analysis and resolution of the issues that are before us.
See Nanopierce Techs., Inc. v. Depository Trust & Clearing Corp., 123 Nev.
362, 370, 168 P.3d 73, 79 (2007) (providing that whether a federal statute
preempts a state statute is a question of law that is reviewed de novo);
Washoe Med. Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1302, 148
P.3d 790, 792 (2006) (providing that de novo review applies to statutory
interpretation issues).
The parties' arguments inherently concern preemption
In arguing that the issue of preemption was waived, Rhodes
correctly notes that we generally do not address arguments that are made
for the first time on appeal and which were not asserted before the district
court. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983
(1981). But we disagree with Rhodes' contention that the preemption
issue was not raised below.
As they did before the district court, the parties on appeal
dispute whether the timeliness of the FDIC's deficiency judgment action is
governed by NRS 40.455(1) or the FDIC extender statute. The issue of
whether an action is governed by a state statutory time limitation or
federal statutory time limitation is inherently a matter that concerns the
preemption doctrine. See, e.g., Waldburger v. CTS Corp., 723 F.3d 434,
438, 442-44 (4th Cir. 2013) (employing the preemption doctrine to resolve
a conflict between a federal statutory time limitation and a state statute of
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repose), rev'd on other grounds, 573 U.S. , 134 S. Ct. 2175 (2014); In re
Countrywide Fin. Corp. Mortg.-Backed Sec. Litig., 966 F. Supp. 2d 1018,
1024-30 (C.D. Cal. 2013) (doing the same with respect to the FDIC
extender statute and a state statute of repose). Although neither party
explicitly invoked the preemption doctrine before the district court, their
arguments concerned a potential conflict between a federal statute and
state statute and thus implicated the doctrine. Moreover, in contesting
Rhodes' motion to dismiss its complaint, the FDIC cited to two authorities
that concerned the preemption doctrine for its contention that the FDIC
extender statute governed its deficiency judgment action:
Stonehedge I Fasa-Texas JDC v. Miller, No. 96-10037, 1997 WL 119899
(5th Cir. March 10, 1997), and WRH Mortgage, Inc. v. Butler, 684 So. 2d
325 (Fla. Dist. Ct. App. 1996).
Although the FDIC more explicitly raises the preemption
doctrine on appeal than it did before the district court, its arguments on
appeal are primarily the same as those that it asserted in contesting
Rhodes' motion. Before the district court, it contended that the FDIC
extender statute displaced NRS 40.455(1). On appeal it argues the same,
but it does so by explicitly raising the preemption doctrine.
Whereas the district court's order did not mention the
preemption doctrine, the substance therein concerns the doctrine. In its
order, the district court concluded that NRS 40.455(1) was a statute of
repose that barred the FDIC's action. In determining that the FDIC
extender statute did not override NRS 40.455(1), the district court implied
that the former did not preempt the latter.
Therefore, we conclude that the arguments before the district
court and the district court's order innately involved the preemption
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doctrine. And thus the issue of whether the FDIC extender statute
preempts NRS 40A55(1) is properly before us.
The FDIC extender statute preempts NRS 40.455(1)
The preemption doctrine is rooted in the Supremacy Clause of
the United States Constitution, which states: "[T]he Laws of the United
States. . . shall be the supreme Law of the Land;. . . any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding." U.S.
Const. art. VI. Whether a federal law preempts a conflicting state law is a
matter of congressional intent. Nanopierce, 123 Nev. at 370, 168 P.3d at
79. Because there is a strong presumption that federal law does not
supersede state law in areas that states generally regulate, the intent to
preempt state law must be "clear and manifest." Id. at 370-71, 168 P.3d
at 79 (quoting Bates v. Dow Agrosciences L.L.C., 544 U.S. 431, 449 (2005)).
Of the multiple types of preemption, express preemption is relevant to this
appeal Express preemption occurs when Congress explicitly conveys in
its statutory language the intent to preempt state law. Id. at 371, 168
P.3d at 79.
Here, the FDIC extender statute expressly sets out "the
applicable statute of limitations" for "any action brought by" the FDIC. 12
U.S.C. § 1821(d)(14)(A) (2012). In using the term "shall" to mandate that
the "applicable statute of limitations . . . shall be. . . the longer of' six
years after the FDIC's claim accrues or "the period applicable under State
law," Congress barred the possibility that some other time limitation
would apply to the FDIC's claim. See id.
In contending that the FDIC extender statute does not
expressly preempt state statutes of repose, Rhodes emphasizes that the
FDIC extender statute includes the phrase "statute of limitations" and
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omits the phrase "statute of repose. The distinction between these two
terms is often overlooked. A statute of limitations prohibits a suit after a
period of time that follows the accrual of the cause of action. Allstate Ins.
Co. v. Furgerson, 104 Nev. 772, 775 n.2, 766 P.2d 904, 906 n.2(1988).
Moreover, a statute of limitations can be equitably tolled. Copeland v.
Desert Inn Hotel, 99 Nev. 823, 826, 673 P.2d 490, 492 (1983) (identifying
equitable tolling as an indicia of a statute of limitations). In contrast, a
statute of repose bars a cause of action after a specified period of time
regardless of when the cause of action was discovered or a recoverable
injury occurred. Allstate Ins. Co., 104 Nev. at 775 n.2, 766 P.2d at 906 n.2;
Libby v. Eighth Judicial Dist. Court, 130 Nev. , n.1, 325 P.3d 1276,
1280 n.1 (2014). It conditions the cause of action on filing a suit within
the statutory time period and "defines the right involved in terms of the
time allowed to bring suit." P. Stolz Family P'ship L.P. v. Daum, 355 F.3d
92, 102 (2d Cir. 2004). Such a statute seeks to give a defendant peace of
mind by barring delayed litigation, so as to prevent unfair surprises that
result from the revival of claims that have remained dormant for a period
during which the evidence vanished and memories faded. See Underwood
Cotton Co. v. Hyundai Merch. Marine (Am.), Inc., 288 F.3d 405, 408-09
(9th Cir. 2002) (providing that statutes of repose are concerned with a
defendant's peace of mind); Joslyn v. Chang, 837 N.E.2d 1107, 1112 (Mass.
2005) (noting that statutes of repose prevent stale claims from springing
up and surprising parties when the evidence has been lost).
Emphasizing the distinction between statutes of limitations
and repose, Rhodes asserts that the FDIC extender statute's term "statute
of limitations" conveys that the federal statute only contemplates the
displacement of state statutes of limitations and not repose. We disagree
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and find this reading of the FDIC extender statute to be unreasonable.
Rhodes' reading of the FDIC extender statute appears to overlook that the
statute's phrase "statute of limitations" expressly identifies the time
limitation set by the FDIC extender statute itself; the phrase does not
refer to the time limitations in other state statutes that the FDIC extender
statute displaces. In identifying the state time limitations that are
displaced by its six-year time limitation, the FDIC extender statute states
that its six-year time limitation controls over the shorter "period
applicable under State law." 12 U.S.C. § 1821(d)(14)(A) (2012) (emphasis
added). Therefore, regardless of whether the "period applicable under
State law" is a statute of limitations or repose, the FDIC extender
statute's language expresses the intent to have the six-year time
limitation preempt all other shorter state law time limitations, including
NRS 40.455(1). See 12 U.S.C. § 1821(d)(14)(A) (2012).
As we deliberated on this appeal, the United States Supreme
Court issued CTS Corp. v. Waldburger, 573 U.S. , 134 S. Ct. 2175
(2014), wherein it concluded that a federal statute that is similar, but not
identical, to the FDIC extender statute does not preempt state statutes of
repose. Id. at , 134 S. Ct. at 2180-89. In making its determinations,
the United States Supreme Court relied on statutory language that is not
present in the FDIC extender statute. See id. The federal statute at issue
in CTS Corp., 42 U.S.C. § 9658, provides a "federally required
commencement date' for the accrual of state law environmental tort
claims. Id. at , 134 S. Ct. at 2184 (quoting 42 U.S.C. § 9658(a)(1)
(2012)). In particular, 42 U.S.C. § 9658 provides that the federally
required commencement date applies "if the applicable limitations period
for such action (as specified in the State statute of limitations or under
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common law) provides a commencement date which is earlier than the
federally required commencement date." 42 U.S.C. § 9658(a)(1) (2012).
Additionally, the federal statute separately defines the taint "applicable
limitations period" as "the period specified in a statute of limitations." 42
U.S.C. § 9658(b)(2) (2012).
In CTS Corp., the United States Supreme Court reasoned that
it would be "awkward" for Congress to use the phrase "applicable
limitations period," which conveys the preempted state time period in the
singular, to preempt both statutes of limitations and repose, and in so
reasoning it concluded that "the context" of 42 U.S.C. § 9658 reveals
Congress's "intent not to cover statutes of repose." Id. at , 134 S. Ct. at
2186-87. That context was partially comprised of a congressional study
group report—which preceded the federal statute and which was specific
to the subject matter that the federal statute covered—that acknowledged
the distinction between statutes of limitations and repose. Id. at , 134
S. Ct. at 2180-81, 2186. Additionally, the United States Supreme Court
emphasized that the phrase "applicable limitations period" was statutorily
defined in a way that concerned state statutes of limitations and that a
statutory provision that equitably tolled the federally required
commencement date indicated that Congress only intended to preempt
state statutes of limitations. Id. at , 134 S. Ct. at 2187-88.
CTS Corp.'s analysis does not dissuade us from concluding
that the FDIC extender statute preempts both statutes of limitations and
repose. The FDIC extender statute is different than the federal statute
that was evaluated in CTS Corp. Although the FDIC extender statute
appears near two tolling provisions, 12 U.S.C. § 1821(d)(5)(F) and 12
U.S.C. § 1821(d)(8)(E), these tolling provisions are different from the
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tolling provision that was considered in CTS Corp. The tolling provision
in CTS Corp. specifically defined and delayed the "federally required
commencement date," as that phrase appears in 42 U.S.C. § 9658, for
certain state law actions that have earlier commencement dates under the
state's applicable limitations period. 42 U.S.C. § 9658(a)(1), (b)(4)(B)
(2012); CTS Corp., 573 U.S. at , 134 S. Ct. at 2184. But 12 U.S.C. §
1821(d)(5)(F) and 12 U.S.C. § 1821(d)(8)(E) toll the "applicable statute of
limitations" in the context of an administrative claims process with
respect to the action of a claimant who files a "claim with the receiver."
Thus, these tolling provisions are unlike the tolling language in CTS Corp.
that expressly applied to and defined language in the federal statute that
displaced a state statute of limitations. Thus, 12 U.S.C. § 1821(d)(5)(F)
and 12 U.S.C. § 1821(d)(8)(E) do not indicate what Congress intended to
preempt with the FDIC extender statute.
Moreover, the FDIC extender statute uses the broad phrase
"period applicable under State law" to identify what is preempted. 12
U.S.C. § 1821(d)(14)(A) (2012). Unlike the similar statutory phrase in
CTS Corp. that was defined by language that indicated Congress's intent
to only preempt statutes of limitation, the FDIC extender statute's phrase
"period applicable under State law" is undefined. See id. Although the
analysis in CTS Corp. identified that the singular form of "applicable
limitations period" was an "awkward way" to preempt statutes of
limitations in the context of a federal statute that defined the "applicable
limitations period" with language indicating the intent to preempt only a
statute of limitations, 573 U.S. at , 134 S. Ct. at 2186-87, we conclude
that in the context of the FDIC extender statute, the plain meaning of the
broad and undefined phrase "period applicable under State law" conveys
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the intent to preempt any applicable state time limitation, including state
statutes of repose. See In re Resort at Summerlin Litig., 122 Nev. 177,
182, 127 P.3d 1076, 1079 (2006) (providing that an undefined statutory
phrase is construed based on its plain meaning); Am. Fedin of Gov't Pimps.,
AFL-CIO v. Glickman, 215 F.3d 7, 10 (D.C. Cir. 2000) (indicating that an
undefined statutory term is not ipso facto ambiguous and that such terms
are to be given their plain meaning); see also 1U
U.S.C. § 1 (2012) ("[U]nless
the context indicates otherwise LI words importing the singular include and
apply to several., . things . . . ." (emphasis added)).
Yet on the premise that NRS 40.455(1) is a statute of repose,
Rhodes contends that a federal statute cannot preempt a state statute of
repose because federal agencies must comply with state statutes of repose
that establish substantive conditions for a cause of action under state law.
In so contending, he directs us to at least two authorities that contain
arguably similar conclusions: (1) Resolution Trust Corp. v. Olson, 768 F.
Supp. 283 (D. Ariz. 1991), and (2) In re Countrywide Financial Corp.
Mortgage-Backed Securities Litigation, 966 F. Supp. 2d 1018 (C.D. Cal.
2013).
The Countrywide court perceived a conceptual difficulty in
par mitting a federal statute to preempt a state statute of repose, in that a
statute of repose generally "defines, limits, and even terminates the right"
that is to be enforced. 966 F. Supp. 2d at 1029. According to the
Countrywide court, when a state statute of repose lapses for a claim, the
claim ceases to exist and the FDIC extender statute cannot revive it. Id.
at 1029-30 & n.8. The Olson court reached the same result pursuant to a
slightly different analysis. Olson, 768 F. Supp. at 285-86. The Olson court
characterized a state statute of repose as being substantive in nature and
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concluded that a federal agency must satisfy a state statute of repose's
time limitation because it must satisfy state statutes that are substantive,
rather than procedural, in nature. Id. Here, the district court seemed to
be persuaded by Rhodes' reliance on Olson when it concluded that NRS
40.455(1) was a "substantive statute of repose" with which the FDIC
needed to comply regardless of the FDIC extender statute.
But unlike the district court, we are not persuaded by the
reasoning in Countrywide or Olson. Although we find Countrywide's
analysis to be more persuasive than that in Olson, in that the former
offers a more cogent analysis for its conclusions, neither case convinces us
that a federal statute cannot preempt a state statute of repose. We do not
agree with Olson's conclusion that the determination of whether a federal
statute controls over a state statute is based on whether the latter is
"procedural" or "substantive." See Olson, 768 F. Supp. at 285-86; see also
Countrywide, 966 F. Supp. 2d at 1030 n.8 (rejecting Olson's analysis that
focused on whether a state statute was procedural or substantive); Butler,
684 So. 2d at 328 (rejecting Olson). And in light of other authorities
wherein federal statutes preempted state statutes of repose, we hesitate to
adopt Countrywide's conclusion—which is primarily based on reasoning
absent legal authority that directly addresses the issue—that a statute of
repose cannot be preempted. See Countrywide, 966 F. Supp. 2d at 1029-
30; see also Chatham Steel Corp. v. Brown, 858 F. Supp. 1130, 1150-52
(N.D. Fla. 1994) (concluding that a federal statute preempts state statutes
of repose); A.S.L, Inc. v. Sanders, 835 F. Supp. 1349, 1355, 1358 (D. Kan.
1993) (applying the preemption doctrine to conclude that a federal statute
preempted a state statute of repose while rejecting the argument that a
statute of repose is immunized from being preempted because it is
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substantive in nature); Butler, 684 So. 2d at 327-28 (concluding that the
FDIC extender statute preempted a state statutory time limitation,
regardless of whether the latter was a statute of limitations or repose);
Tow v. Pagano, 312 S.W.3d 751, 761 (Tex. App. 2009) (concluding that a
federal statute can preempt a state statute of repose, albeit with respect to
a federal bankruptcy statute).
Accordingly, we need not characterize NRS 40.455(1) as a
statute of limitations or repose. NRS 40.455(1) is a "period applicable
under State law" that is shorter than the FDIC extender statute's six-year
time limitation. 12 U.S.C. § 1821(d)(14)(A) (2012). Thus, we conclude that
the FDIC extender statute's six-year time limitation expressly preempts
NRS 40.455(1).
CONCLUSION
In light of the above, we conclude that the district court erred
in dismissing the FDIC's action for a deficiency judgment when it
determined that NRS 40.455(1) was a statute of repose that barred the
action that the FDIC filed after NRS 40.455(1)'s six-month deadline but
before the expiration of the FDIC extender statute's six-year time
limitation. A plain reading of the FDIC extender statute indicates that its
six-year time limitation expressly preempts any shorter state statutory
time limitation, including the limitation provided in NRS 40.455(1),
regardless of whether the state statute is a statute of limitations or repose.
Accordingly, we reverse the portion of the district court's order that
dismissed the FDIC's deficiency judgment claim as time barred and
remand this matter to the district court for further proceedings that are
consistent with this opinion. As the FDIC failed to meaningfully dispute
the determinations in the order beyond the district court's conclusion
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about the timeliness of its suit for a deficiency judgment, we affirm and do
not address those determinations.'
J.
Saitta
We concur:
Pickering
..e.e.42Z1
Hardesty
Douglas
1 (4 , J.
"In addition to raising the preemption issue, the FDIC asserts that
the district court erred in dismissing its contract-based claims beyond its
deficiency judgment action. But it makes this assertion without
meaningful analysis or a citation to salient authority. In the absence of a
cogent argument about the dismissal of the contract-based claims, we do
not address that issue. See Edwards v. Emperor's Garden Rest., 122 Nev.
317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (providing that we need not
address an issue that is not cogently argued). Moreover, we have
considered the remaining contentions on appeal and conclude that they
lack merit.
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GIBBONS, C.J., with whom PARRAGUIRRE and CHERRY, JJ., agree,
dissenting:
The FDIC failed to preserve its preemption argument
I would affirm the judgment of the district court. The FDIC
failed to preserve its preemption argument by failing to raise the
argument before the district court. The majority concedes that the
preemption doctrine argument was not explicitly raised before the district
court. This court does not address arguments that are made for the first
time on appeal and which are not asserted before the district court. Old
Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981).
The FDIC extender statute does not preempt state statutes of repose
In addition, NRS 40.455(1) is a statute of repose that bars the
FDIC's action. As the majority acknowledges, statutes of repose are
distinct from statutes of limitation. Statutes of repose bar a cause of
action after a specified period of time regardless of when the cause of
action was discovered or a recoverable injury occurred. Allstate Ins. Co. v.
Furgerson, 104 Nev. 772, 775 n.2, 766 P.2d 904, 906 n.2 (1988). The
majority concludes that the FDIC extender statute applies to both statutes
of limitation and statutes of repose. I disagree.
First, when addressing what the applicable statute of
limitations should be, the FDIC extender statute refers to "the period
applicable under State law." 12 U.S.C. § 1821(d)(14)(A)(i)(H) (2012). As
the United States Supreme Court concluded, "[using 'period' in a singular
form] would be an awkward way to mandate the pre-emption of two
different time periods with two different purposes." CTS Corp. v.
Waldburger, 573 U.S. „ 134 S. Ct. 2175, 2187 (2014) (addressing
whether a federal statute preempts statutes of repose applicable to state-
law tort actions in certain circumstances).
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Second, the FDIC extender statute contains a provision that
provides for tolling of the statute of limitations. 12 U.S.C. §
1821(d)(5)(F)(i) (this section, entitled "Statute of limitation tolled," states
that "[for purposes of any applicable statute of limitations, the filing of a
claim with the receiver shall constitute a commencement of an action")
This "suggests that the statute's reach is limited to statutes of limitations,
which traditionally have been subject to tolling." See CTS Corp., 573 U.S.
at , 134 S. Ct. at 2188.
Lastly, the FDIC extender statute extends the time period for
"any action" to be brought. Black's Law Dictionary defines "action" as a
"civil or criminal judicial proceeding." Black's Law Dictionary 31 (8th ed.
2004). Similar to the United States Supreme Court's analysis of "civil
action" in CTS Corp., the use of the term "action" presupposes that a cause
of action exists. CTS Corp., 573 U.S. at , 134 S. Ct. at 2187. While "in
a literal sense a statute of repose limits the time during which a suit 'may
be brought' because it provides a point after which a suit cannot be
brought," statutes of repose are not related to the existence of any cause of
action. Id. ("A statute of repose. . . may preclude an alleged tortfeasor's
liability before a plaintiff is entitled to sue, before an actionable harm ever
occurs.") Thus, the FDIC extender statute is best interpreted to reference
only statutes of limitations, which generally begins to run after a cause of
action accrues. Id.
The majority concludes that the federal statute at issue in
CTS Corp. is sufficiently different from the FDIC extender statute and
that a departure from the Court's holding in that case is warranted.
However, both federal statutes use the term "period" in a singular form
when addressing which limitation period is covered; both federal statutes
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provide for tolling of statutes of limitation; and both federal statutes
address the time limit for when an "action" may be brought. Moreover,
"when the text of a pre-emption clause is susceptible of more than one
plausible reading, courts ordinarily accept the reading that disfavors pre-
emption." CTS Corp., 573 U.S. at , 134 S. Ct. at 2188 (quotations
omitted). As such, I agree with the conclusion of the federal district court
in the case of In re Countrywide Financial Corp. Mortgage-Backed
Securities Litigation, 966 F. Supp. 2d 1018, 1024-30 (C.D. Cal. 2013), that
the federal extender statute does not preempt state statutes of repose. As
a consequence, the district court correctly concluded that the deficiency
action initiated by the FDIC was time-barred.
C.J.
We concur:
Parraguirre Cals j.
Ck J.
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