Canada Life Assurance v. Lapeter

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CANADA LIFE ASSURANCE CO., 
Plaintiff-Appellee,
No. 07-35683
v.
ALFRED R. LAPETER; SHARON R.  D.C. No.
CV-07-00254-BLW
LAPETER; LAPETER 1985 LIVING
OPINION
TRUST,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding

Submitted December 11, 2008*
Seattle, Washington

Filed March 4, 2009

Before: Ronald M. Gould, Richard C. Tallman and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

2711
2714 CANADA LIFE ASSURANCE v. LAPETER
COUNSEL

B. Newal Squyres, Robert A. Faucher, and Kevin C. Braley,
Holland & Hart, LLP, on behalf of plaintiff-appellee Canada
Life Assurance Co.

Emil R. Berg, Greener Burke Shoemaker P.A., on behalf of
defendants-appellants Alfred R. LaPeter and Sharon R.
LaPeter as Trustees for the LaPeter 1985 Living Trust.

OPINION

CALLAHAN, Circuit Judge:

Alfred R. LaPeter and Sharon R. LaPeter, as trustees for the
LaPeter 1985 Living Trust (referred to collectively as “La-
Peter”), appeal the district court’s order appointing a receiver
to manage the ParkCenter Mall in Boise, Idaho (the “Mall”).1
We have jurisdiction under 28 U.S.C. § 1292(a)(2), and we
affirm.

I.

In 1996, LaPeter purchased the Mall for $9.6 million, made
a $2.4 million down payment, and financed the rest through
a promissory note (the “loan”) issued by Crown Life Insur-
ance Company (“Crown Life”). The loan was secured by a
Deed of Trust, Security Agreement and Fixture Filing (“Deed
of Trust”) and an “Assignment of Leases and Cash Collater-
al.”
1
The trust itself is the party to the loan at issue in this case, but not a
party to the appeal. We refer to appellants collectively as “LaPeter”
because the record relates only Alfred LaPeter’s involvement in the events
giving rise to this action.
 CANADA LIFE ASSURANCE v. LAPETER 2715
In 1999, Crown Life assigned the loan to Canada Life
Assurance Company (“Canada Life”). In early 2005, LaPeter
began negotiating with Canada Life to refinance the loan at a
lower interest rate. The loan was set to mature in September
2006, at which time a balloon payment on the remaining prin-
cipal was due, and the leases of important Mall tenants —
Key Bank and Talbots — were set to expire around the same
time. During the refinancing negotiations, LaPeter made vari-
ous representations to Canada Life about the Mall’s current
and projected lease income. On June 21, 2005, Canada Life
agreed to refinance the loan at a lower interest rate based, in
part, on LaPeter’s representations that KeyBank would only
renew its lease for reduced rent and that Talbots would not
renew its lease at all. Three days later, LaPeter entered into
a new lease agreement with Key Bank, which resulted in a
significant increase in rental payments to LaPeter. LaPeter did
not disclose this modification to Canada Life. Furthermore,
LaPeter failed to inform Canada Life that Talbots decided to
extend its lease for two years.

Canada Life learned of the Talbots and Key Bank modifi-
cations between October 1 and November 3, 2005, and can-
celled its refinancing commitment on November 16, 2005.2
Following Canada Life’s cancellation, LaPeter was unable to
obtain alternative financing, and defaulted on the loan. He
made a monthly loan payment on June 10, 2006, in the
amount of $59,000, but failed to make the July and August
payments. He also missed the balloon payment on September
10, 2006, and failed to pay over $100,000 in property taxes
that were due in December 2006 and June 2007. The failure
2
LaPeter filed suit against Canada Life in March 2006, alleging wrong-
ful termination of the refinancing commitment. Canada Life removed the
case to district court, where it prevailed on summary judgment on August
3, 2007. We affirmed that judgment in a memorandum disposition on Jan-
uary 5, 2009, concluding that Canada Life had “reasonable justification”
to terminate its refinancing commitment in light of LaPeter’s misrepresen-
tations about the economics of the leases. See LaPeter, et al. v. Canada
Life Ins. Co., No. 07-35668, 2009 WL 20960 (9th Cir. Jan. 5, 2009).
2716 CANADA LIFE ASSURANCE v. LAPETER
to pay taxes resulted in late charges and penalty interest. Dur-
ing this time, LaPeter continued to collect rents from the
Mall’s tenants and deposited those proceeds, minus operating
expenses, in a segregated account.

The missed payments and failure to pay property taxes con-
stituted defaults under the terms of the loan. Pursuant to the
terms of the Deed of Trust and the Assignment of Leases and
Cash Collateral, these defaults entitled Canada Life to take
possession of and manage the Mall, collect its rents, and apply
for the appointment of a receiver.

On March 26, 2007, Canada Life took steps to foreclose on
the Deed of Trust by filing a notice of default and a notice of
trustee’s sale.3 Days later, it filed an action in state court seek-
ing to appoint a receiver pursuant to Idaho Code § 8-601A in
order to assume possession, management, and control of the
Mall.4 Its motion to appoint a receiver included a request that
LaPeter be ordered to turn over to the receiver any rents col-
lected from the date of the motion onward. LaPeter removed
the case to federal court on the basis of diversity jurisdiction,
and the district court held an evidentiary hearing on July 10,
2007. In connection with the hearing, Canada Life submitted
an appraisal reflecting the Mall’s capitalized value of
$7,140,000. Brian Schwartz, Canada Life’s commercial mort-
gage manager in charge of the refinancing negotiations, testi-
fied that this figure should be adjusted downward because the
3
In a separate action, LaPeter unsuccessfully sought to enjoin that sale.
While the present appeal was pending, he filed an appeal from the denial
of the injunction, which he ultimately dismissed. See LaPeter, et al. v.
Canada Life Assurance Co., No. 07-35873. Despite the dismissal, Canada
Life delayed the trustee’s sale pending resolution of the other appeals.
4
Pursuant to Idaho Code § 8-601A, a receiver may be appointed where
the real property that is the subject of the deed of trust is “in danger of
substantial waste or . . . the income therefrom is in danger of being lost,
or . . . the property is or may become insufficient to discharge the debt
which it secures.”
 CANADA LIFE ASSURANCE v. LAPETER 2717
leases had come closer to expiration in the year and a half
since the appraisal was made.5

Although Schwartz testified that he did not “know the exact
value of the mall today,” he opined that it would be insuffi-
cient to discharge the debt. He testified that LaPeter currently
owed Canada Life $7,310,605, an estimate based on the prin-
cipal balance of $5,966,541, plus contractual interest, default
interest, late charges, attorneys’ and trustee’s fees, and unpaid
taxes. LaPeter offered no formal appraisal to contradict these
estimates, and conceded in briefing on appeal the existence of
a “small shortfall.” At the evidentiary hearing, LaPeter simply
testified that he “believe[d], based on the future potential,”
that the Mall was worth $12 million, and that it would be
“filled up or released in the next three to four years,” although
he also admitted that the “demand for office or retail space is
not very high currently.”

By order dated July 12, 2007, the district court appointed
a receiver. That order specified the receiver’s duties and obli-
gations, and ordered LaPeter to turn over any rents collected
from May 21, 2007, onward (“past rents”). The district court
did not indicate whether it was applying state or federal law
in making the appointment, but its findings tracked the Idaho
statute.6 Specifically, the court found that the appointment
was necessary because the Mall “and the rents associated
therewith, constituting the collateral” were “in danger of sub-
stantial waste and risk of loss because income from the [Mall
was] being diverted and not applied to servicing the debt
encumbering the [Mall] and the real estate taxes on [it].” The
district court also found that the Mall “is or may become
insufficient to discharge the debt which it secures.”
5
Schwartz works for Great-West Life & Annuity Company, a sister
organization of Canada Life.
6
As discussed infra, the appointment of a receiver under federal law
hinges on factors similar to those specified in the Idaho statute.
2718 CANADA LIFE ASSURANCE v. LAPETER
LaPeter timely appealed the appointment of the receiver,
challenging the district court’s apparent application of state
law, and the portion of the order requiring LaPeter to relin-
quish the past rents. Both parties requested attorneys’ fees on
appeal.

II.

A. Jurisdiction

We have jurisdiction to review an appeal from an order
appointing a receiver pursuant to 28 U.S.C. § 1292(a)(2). Sec-
tion 1292(a)(2) vests this court with jurisdiction over
“[i]nterlocutory orders appointing receivers, or refusing
orders to wind up receiverships or to take steps to accomplish
the purposes thereof, such as directing sales or other disposals
of property.” We have adopted “a policy of strict construction
that has confined appeals to the three categories clearly speci-
fied in the statute.” FTC v. Overseas Unlimited Agency, Inc.,
873 F.2d 1233, 1235 (9th Cir. 1989) (citations and quotations
omitted). Here, the order appointing the receiver clearly falls
within the first category and therefore is properly before the
court. However, the parties dispute whether the portion of the
order requiring LaPeter to turn over past rents is appealable
under § 1292(a)(2).

[1] We have previously held that orders requiring funds to
be turned over to a receiver are nonappealable under
§ 1292(a)(2). Overseas Unlimited Agency, Inc., 873 F.2d at
1235. However, in Overseas, the “turnover order” at issue
was not included in the order appointing the receiver, as it is
here. Id. at 1234; see also SEC v. Am. Principals Holdings,
Inc., 817 F.2d 1349, 1351 (9th Cir. 1987) (separate turnover
order not appealable under § 1292(a)(2)); United States v.
Chelsea Towers, Inc., 404 F.2d 329, 330 (3d Cir. 1968) (sepa-
rate order requiring the delivery of certain deposits to the
receiver not appealable); but see CFTC v. Topworth Int’l,
Ltd., 205 F.3d 1107, 1112 (9th Cir. 1999) (holding that a sep-
 CANADA LIFE ASSURANCE v. LAPETER 2719
arate order requiring funds to be turned over to a receiver was
appealable under 28 U.S.C. § 1291, because it finally deter-
mined the appellant’s rights in the disputed receivership assets).7

[2] The parties do not point to, and we can find no, cases
addressing the appealability of a turnover order that is
included in the order appointing a receiver. The unique pos-
ture of the turnover order in this case distinguishes it from the
discrete orders at issue in Overseas and American Principals
Holdings. Based on this distinction, we conclude that because
we have jurisdiction pursuant to § 1292(a)(2) to review the
appointment order, we may review provisions of that order
which would not by themselves be immediately reviewable.8

B. Law Governing Appointment of a Receiver in
Diversity Action

Next, we consider whether state or federal law governs the
appointment of a receiver in a diversity action such as this
one. We conclude that federal law governs, and that appoint-
ment orders are reviewed for abuse of discretion.

1. Federal Law Governs

[3] We have never squarely addressed the issue of whether
federal or state law governs the appointment of a receiver by
7
The panel in Topworth does not appear to have considered the applica-
bility of 28 U.S.C. § 1292(a)(2), given its determination that the district
court had issued a final order and not an interlocutory order. Here, LaPeter
premised the appeal on § 1292(a)(2), given the parties’ litigation of ongo-
ing, related disputes regarding the refinancing agreement and the trustee’s
sale.
8
We recognize that other cases may arise where adjudication of a turn-
over order like the one in this case may not be appropriate for interlocu-
tory review, for example, where there are additional outstanding issues
with respect to the receivership. In this case, further litigation with respect
to the receivership is unlikely, as there are only two parties involved with
the receivership and LaPeter’s related appeals have been resolved.
2720 CANADA LIFE ASSURANCE v. LAPETER
a district court where federal jurisdiction is based on diversity.
Those circuits that have considered the issue have held that
federal law governs. Nat’l P’ship Inv. Corp. v. Nat’l Hous.
Dev. Corp., 153 F.3d 1289, 1291-92 (11th Cir. 1998) (federal
law governs appointment of a receiver in diversity case); Avi-
ation Supply Corp. v. R.S.B.I. Aerospace, Inc., 999 F.2d 314,
316 (8th Cir. 1993) (same).9

In National Partnership, the Eleventh Circuit concluded
that Federal Rule of Civil Procedure 66 “assert[ed] the pri-
macy of federal law in the practice of federal receiverships.”
153 F.3d at 1291. Rule 66 provides:

These rules govern an action in which the appoint-
ment of a receiver is sought or a receiver sues or is
sued. But the practice in administering an estate by
a receiver or a similar court-appointed officer must
accord with the historical practice in federal courts
or with a local rule.

Fed. R. Civ. P. 66 (emphasis added).

[4] Not only does Rule 66 require application of the federal
rules in an action where the appointment of a receiver is
sought, it specifically indicates a normative standard for uni-
form administration of receiverships in accordance “with the
historical practice in federal courts.” Id.; see also 12 Wright,
Miller & Marcus (“Wright, Miller & Marcus”), Federal Prac-
tice and Procedure § 2983, at 33-35 (2d ed. 1997).

[5] The primacy of the federal rules in diversity actions is
well-settled. See Hanna v. Plumer, 380 U.S. 460, 471 (1965)
9
Other courts have applied federal law in diversity cases without much
discussion. See, e.g., Chase Manhattan Bank, N.A. v. Turabo Shopping
Ctr., Inc., 683 F.2d 25, 26 (1st Cir. 1982); Bookout v. Atlas Fin. Corp.,
395 F. Supp. 1338, 1339 (N.D. Ga. 1974) aff’d per curiam sub nom. Book-
out v. First Nat’l Mortgage & Disc. Co., 514 F.2d 757 (5th Cir. 1975).
 CANADA LIFE ASSURANCE v. LAPETER 2721
(“When a situation is covered by one of the Federal Rules, the
question facing the court is a far cry from the typical, rela-
tively unguided Erie choice: the court has been instructed to
apply the Federal Rule, and can refuse to do so only if the
Advisory Committee, this Court, and Congress erred in their
prima facie judgment that the Rule in question transgresses
neither the terms of the Enabling Act nor constitutional
restrictions.”). Indeed, as the Eleventh Circuit reasoned in
National Partnership, “to the extent Rule 66 dictates what
principles should be applied to federal receiverships, courts
must comply with the Rule even in the face of differing state
law.” 153 F.3d at 1291 (citing Hanna, 380 U.S. at 471).

The dispute here hinges on LaPeter’s contention that fed-
eral law differs greatly from Idaho law, and that federal law
would not permit the appointment of a receiver in this case.
We disagree that the two bodies of law differ so substantially.10
Even if they did, any divergences between the two bodies of
law would not implicate the Erie doctrine, as Canada Life
suggests, “because the appointment of a receiver does not
directly affect the outcome of the [underlying] action.”11 New
York Life Ins. Co. v. Watt West Inv. Corp., 755 F. Supp. 287,
291 (E.D. Cal. 1991) (citing Pusey & Jones Co. v. Hanssen,
261 U.S. 491, 497 (1923)); see also Hanna, 380 U.S. at 465-
66 (eschewing “traditional or common-sense substance-
procedure distinction[s]” and holding that the proper inquiry
under Erie is whether a state rule “significantly affect[s] the
result of a litigation”). As the Eleventh Circuit noted, the “ap-
pointment of a receiver in equity is not a substantive right;
rather, it is an ancillary remedy which does not affect the ulti-
10
Although the state statute relied on by Canada Life is specific to the
appointment of a receiver in cases involving defaults under a deed of trust,
it nonetheless requires the court to consider whether certain factors are
present. Those factors — the danger of substantial waste, and the insuffi-
cient value of the property to discharge the debt — are similar to factors
considered under federal law. See infra.
11
See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
2722 CANADA LIFE ASSURANCE v. LAPETER
mate outcome of the action.” Nat’l P’ship Inv. Corp., 153
F.3d at 1291 (citing Pusey, 261 U.S. at 497). In this case, the
receivership has allowed Canada Life to manage the Mall
pending resolution of the parties’ litigation of their rights and
obligations with regard to the refinancing agreement and Can-
ada Life’s ability to proceed with the trustee’s sale. The
receivership action is tangential to those disputes.

[6] Finally, although a state statute may provide a vehicle
for the appointment of a receiver, such a statute does not
change the nature of the federal courts’ equitable powers.
Indeed, a federal court sitting in diversity may exercise equi-
table powers independent of state law. See 12 Wright, Miller
& Marcus § 2983 (citing Guaranty Trust Co. of New York v.
York, 326 U.S. 99 (1945), which affirmed the independent
vitality of federal equitable powers). In York, the Court
acknowledged that a federal court sitting in equity is not con-
strained by what remedies are available under state law. 326
U.S. at 105. Thus, regardless of whether state law provides a
vehicle by which to appoint a receiver, the federal courts are
free to provide that remedy solely by virtue of their equitable
powers. Based on the foregoing, we join the Eleventh and
Eighth Circuits in holding that federal law governs the issue
of whether to appoint a receiver in a diversity action.12
12
To the extent we have previously applied state law, we did so without
deciding whether state or federal law controlled. Thus, those decisions are
not controlling. Estate of Bishop v. Bechtel Power Corp., 905 F.2d 1272,
1275-76 (9th Cir. 1990) (court not bound by prior cases in which the ques-
tion was assumed without decision). See, e.g., Pioche Mines Consol., Inc.
v. Dolman, 333 F.2d 257, 273 (9th Cir. 1964) (commenting that state law
probably applied, but explicitly declining to decide the issue because
appointment of a receiver was inappropriate under both state and federal
law); Prudential Ins. Co. of Am. v. Fifty Associates, 503 F.2d 925, 930
(9th Cir. 1974) (assuming without discussion that state law governed
appointment of a receiver where parties did not dispute that issue).
 CANADA LIFE ASSURANCE v. LAPETER 2723
2. Standard of Review

Although it appears that we have never explicitly articu-
lated the standard for reviewing a district court order appoint-
ing a receiver, we have consistently applied an abuse of
discretion standard. See SEC v. Wallenbrock, 313 F.3d 532,
536 (9th Cir. 2002) (applying abuse of discretion standard
where defendant challenged the district court’s injunction and
appointment of receiver); SEC v. Hardy, 803 F.2d 1034, 1041
(9th Cir. 1986) (Reinhardt, J., concurring and dissenting)
(“power inherent in the district court to create a receivership
. . . is an equitable one” that should not be overturned “absent
compelling justification demonstrating abuse of discretion”);
View Crest Garden Apartments, Inc. v. United States (“View
Crest”), 281 F.2d 844, 849 (9th Cir. 1960) (court acted well
within its broad discretionary powers in appointing a
receiver).

This is in accord with other federal authorities. See, e.g.,
Nat’l P’ship Inv. Corp., 153 F.3d at 1292 (“[A] court of
appeals should review a district court’s decision to appoint a
receiver for an abuse of discretion.”); Aviation Supply Corp.,
999 F.2d at 317 (“We review the decision to appoint a
receiver for abuse of discretion.”); Lyman v. Spain, 774 F.2d
495, 497 (D.C. Cir. 1985) (“Abuse of discretion is the stan-
dard of review.”).13 Accordingly, we affirm that abuse of dis-
cretion is the appropriate standard by which to review a
district court’s order appointing a receiver.

3. Application

Under federal law, appointing a “receiver is an extraordi-
nary equitable remedy,” which should be applied with cau-
13
Leading commentators agree that this is the appropriate standard of
review. See 13 James Wm. Moore, et al., Moore’s Federal Practice
(“Moore’s”), § 66.07[3] (3d ed. 2008); 12 Wright, Miller & Marcus
§ 2983, at 30.
2724 CANADA LIFE ASSURANCE v. LAPETER
tion. Aviation Supply Corp., 999 F.2d at 316; 12 Wright,
Miller & Marcus § 2983, at 24. However, there is “no precise
formula for determining when a receiver may be appointed.”
Aviation Supply Corp., 999 F.2d at 316. Rather, federal courts
consider a variety of factors in making this determination,
including, for example: (1) “whether [the party] seeking the
appointment has a valid claim”; (2) “whether there is fraudu-
lent conduct or the probability of fraudulent conduct,” by the
defendant; (3) whether the property is in imminent danger of
“being lost, concealed, injured, diminished in value, or squan-
dered”; (4) whether legal remedies are inadequate; (5)
whether the harm to plaintiff by denial of the appointment
would outweigh injury to the party opposing appointment; (6)
“the plaintiff’s probable success in the action and the possibil-
ity of irreparable injury to plaintiff’s interest in the property”;
and, (7) “whether [the] plaintiff’s interests sought to be pro-
tected will in fact be well-served by receivership.” Moore’s,
§ 66.04[2][b]; New York Life Ins. Co., 755 F. Supp. at 292
(citing 12 Wright, Miller & Marcus § 2983).

We have previously applied similar factors, foremost
among them being whether the property was of insufficient
value to insure payment, and whether the defendant was of
doubtful financial standing.14 See View Crest, 281 F.2d at 847.
While our holding in View Crest appears to be limited to
actions “brought to foreclose a mortgage insured under Title
IX of the National Housing Act,” it is nonetheless instructive.
Id. at 847-48.

There, we indicated that we were adhering to the distinction
drawn by the First Circuit in Garden Homes Inc. v. United
States, 200 F.2d 299 (1st Cir. 1999), between a receiver with
the power to collect rents during the pendency of a foreclo-
sure action, and a receiver with the additional power to man-
14
These factors, as well as those listed in the preceding paragraph, are
very similar to those listed in the Idaho statute relied on by Canada Life.
See fn. 4.
 CANADA LIFE ASSURANCE v. LAPETER 2725
age the mortgaged property. View Crest, 281 F.2d at 847. We
stated that in order to have the added managerial power, the
plaintiff must not only show the doubtful financial standing of
the defendant and the insufficient value of the property, but
also “something more.” Id. We wrote that “[t]he additional
factor may be the danger of waste,” delays in foreclosure, or
“any circumstance which commends itself to a court of equity
as a reason for granting the relief sought.” Id. at 849.

[7] Despite our endorsement of this approach, we also rec-
ognized a court’s authority to appoint a receiver regardless of
these factors, noting that “[e]ven if inadequacy of the security
and insolvency of the debtor did not appear, consideration of
other circumstances [may] disclose[ ] . . . reasons for appoint-
ing . . . a receiver.” Id. at 848. Thus, in View Crest, we appear
to have recognized the broad nature of a court’s equitable
powers in determining whether or not to appoint a receiver,
and that there is no precise formula for making this determi-
nation. We agree with this perspective and hold that the dis-
trict court has broad discretion in appointing a receiver, that
it may consider a host of relevant factors, and that no one fac-
tor is dispositive.

[8] Here, the district court’s appointment of a receiver was
well within its discretion. It determined that the appointment
was necessary because the Mall “and the rents associated
therewith, constituting the collateral” were “in danger of sub-
stantial waste and risk of loss because income from the [Mall
was] being diverted and not applied to servicing the debt
encumbering the [Mall] and the real estate taxes on [it].” The
court also found that the Mall “is or may become insufficient
to discharge the debt which it secures.” These were appropri-
ate factors to consider, and the district court’s findings are
supported by the record.

[9] Specifically, the court’s findings regarding the insuffi-
ciency of the collateral to discharge the debt are supported by
Schwartz’s testimony. He testified that LaPeter owed
2726 CANADA LIFE ASSURANCE v. LAPETER
$7,310,605, and that the Mall was valued at less than
$7,140,000. The district court was entitled to credit the analy-
sis offered by Schwartz, a commercial mortgage manager,
over LaPeter’s unsupported testimony that he “believed” the
Mall was worth “about $12 million.” LaPeter fails to point to
any evidence in the record indicating that the court’s findings
are clearly erroneous. Further, additional factors are present.
LaPeter contributed to the Mall’s devaluation by failing to
pay property taxes and penalty interest. Moreover, he con-
cealed material facts about the Key Bank and Talbots leases
in his negotiations with Canada Life. Although the court made
no finding with respect to LaPeter’s financial standing, it was
not required to do so, especially in light of the presence of
these additional factors. See View Crest, 281 F.2d at 848.15
While the appointment of a receiver is an “extraordinary rem-
edy” under federal law, we conclude that the appointment in
this case was supported by the presence of numerous factors
appropriately considered under federal law, and was well
within the district court’s broad discretionary and equitable
powers.

C. Turnover of Past Rents

LaPeter challenges the receiver’s right to rents collected
prior to the court’s appointment of the receiver. In district
court, LaPeter opposed the “rent portion” of Canada Life’s
motion on grounds that it improperly sought to “vest title” to
the Mall in the receiver “as of the date [of] its motion” rather
than the date of the order.16 In his brief to the district court,
LaPeter did not explain how putting these rents in the receiv-
er’s hands “vested title” in the receiver. Moreover, LaPeter
15
Incidentally, the Deed of Trust in this case appears to be non-recourse,
thus limiting LaPeter’s personal liability for the debt, and lessening the
relevance of LaPeter’s personal financial condition.
16
Thus, the only rents in dispute are those collected during the month
and a half between Canada Life’s motion to appoint a receiver, and the
court’s July 12, 2007, order granting that motion.
 CANADA LIFE ASSURANCE v. LAPETER 2727
failed to address the numerous provisions in the Deed of Trust
that arguably entitle Canada Life to collect the rents upon
default.

On appeal, LaPeter asserts that provisions in the Deed of
Trust merely give Canada Life a security interest in the rents,
that this interest amounts to no more than a “lien” on the Mall
and its collateral, that Idaho is a “lien theory” state, and that
the receiver is therefore not entitled to collect rents until cer-
tain events occur.17 However, LaPeter takes inconsistent posi-
tions with respect to the so-called triggering event, first
arguing that the right to collect rents is triggered when Canada
Life “takes enforcement action,” and then suggesting that the
right commences when Canada Life takes actual possession of
the Mall. With respect to the former, LaPeter fails to explain
how Canada Life’s earlier filed notice of default and notice of
trustee’s sale do not qualify as “enforcement action.” With
respect to the latter, LaPeter seems inconsistently to define
“actual possession” in terms of both the date of the receiver-
ship order and the actual trustee’s sale — two distinct events,
the latter of which does not appear to have occurred yet. The
inconsistency of these arguments render them unpersuasive.
Moreover, LaPeter fails to cite any binding Idaho law direct-
ing the conclusion that Canada Life is not entitled to the dis-
puted rents.

[10] His contract-based arguments are also unavailing. To
the extent LaPeter argues that provisions in the Deed of Trust
17
“Lien theory states differ from title theory states in that they treat a
mortgage as conveying no title to the mortgagee but as creating only the
right to sell the property to satisfy the secured debt in the event of
default.” Sovereign Bank v. Schwab, 414 F.3d 450, 455 n.9 (3d Cir. 2005)
(citation and quotation marks omitted). Under the “lien theory” the “mort-
gagor retains both legal and equitable title unless a valid foreclosure
occurs.” See Black’s Law Dictionary 936 (7th ed. 1999). LaPeter argues
that this theory controls, even where there are contrary provisions in the
Deed of Trust. However, he cites no binding authority to support this
assertion.
2728 CANADA LIFE ASSURANCE v. LAPETER
support his entitlement to the past rents, we find that the fail-
ure to raise these contract-based arguments in the district
court constitutes a waiver of those issues on appeal. See
Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998). Regard-
less of whether the district court relied on the numerous provi-
sions in the Deed of Trust apparently allowing Canada Life to
collect rents upon default, LaPeter has failed to demonstrate
that the “rent portion” of the order was in error. That order
appears to have been aimed at preventing further waste, and
as such, was a valid exercise of the district court’s discretion
in administering and supervising the receivership. See Hardy,
803 F.2d at 1037 (9th Cir. 1986). We therefore affirm the
appointment order in its entirety.

D. Attorneys’ Fees

This court applies state law in a diversity action to deter-
mine whether an award of attorneys’ fees is allowed. Michael-
Regan Co. v. Lindell, 527 F.2d 653, 656 (9th Cir. 1975). Here,
Canada Life claims it is entitled to fees under the terms of the
Deed of Trust and under Idaho Code § 12-120(3). Because we
conclude that Canada Life is a prevailing party entitled to fees
under the Deed of Trust, we need not reach the issue of its
entitlement to fees under the statute.

[11] The Deed of Trust provides for an award of reasonable
attorneys’ fees to a prevailing party, “[s]hould either party
bring suit to enforce this Deed of Trust, . . . including any
. . . appeal proceeding.” As this appeal concerns the appropri-
ateness of the appointment of a receiver, which is specifically
contemplated in the Deed of Trust, it constitutes a “suit to
enforce the Deed of Trust.” Because we conclude that the
appointment of the receiver was proper, Canada Life is the
prevailing party, and is entitled to an award of reasonable fees
in connection with this appeal.18
18
The determination of an appropriate amount of fees on appeal is
referred to the court’s special master, Appellate Commissioner Peter L.
Shaw, who shall conduct whatever proceedings he deems appropriate, and
who shall have authority to enter an order awarding fees. See 9th Cir. R.
39-1.9. The order is subject to reconsideration by this panel. Id.
 CANADA LIFE ASSURANCE v. LAPETER 2729
III.

In conclusion, we join the Eighth and Eleventh Circuits in
holding that federal law governs the appointment of a receiver
where jurisdiction is premised on diversity. We further hold
that district courts have broad discretion to consider a number
of factors in considering whether or not to appoint a receiver,
and that no one factor is dispositive. Applying these stan-
dards, we conclude that the district court’s order appointing
the receiver was not an abuse of discretion, and its order
requiring certain rents to be turned over to the receiver was
within its broad discretion in administering the receivership.
As Canada Life is the prevailing party on appeal, we conclude
that it is entitled to attorneys’ fees under the terms in the Deed
of Trust.

AFFIRMED.