NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD ERWIN and NANCY ERWIN, No. 16-15673
Plaintiffs-Appellants, D.C. No.
2:15-cv-01396-LDG-GWF
v.
WELLS FARGO BANK, N.A., MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted December 4, 2017**
San Francisco, California
Before: CLIFTON and OWENS, Circuit Judges, and BUCKLO,*** District Judge.
Homeowners Gerald and Nancy Erwin (“appellants”) appeal from the
district court’s dismissal, on timeliness grounds, of their action alleging that Wells
Fargo (“appellee”) failed to participate in good faith in proceedings mandated by
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
Nevada’s Foreclosure Mediation Program (“FMP”) and Section 107.086 of the
Nevada Revised Statutes. We affirm.
We review the district court’s dismissal de novo, ASARCO, LLC v. Union
Pac. R. Co., 765 F.3d 999, 1004 (9th Cir. 2014), and resolve issues of state law as
we believe the state’s highest court would resolve them, HS Servs., Inc. v.
Nationwide Mut. Ins. Co., 109 F.3d 642, 644 (9th Cir. 1997). The district court
correctly dismissed appellants’ action as untimely because it was filed several
months after the parties received notice of the mediator’s decision, which is outside
the thirty-day limitations period that applies to petitions for judicial review under
Nevada’s Foreclosure Mediation Rules (“FMR”). See FMR 23(3) (providing that
petitions for judicial review “shall be filed” within 30 days of the date the party to
mediation receives notification of the mediator’s decision).1 Further, the district
court correctly construed appellants’ action as a petition for judicial review
because their claims, however captioned, arose exclusively under Section 107.086.
AFFIRMED.
1
The FMRs have been revised and renumbered several times. The district court
cited FMR 22(3) for the limitations period, quoting: “All such petitions shall be
filed within 30 days of the date that the party to mediation received the notification
of the issuance or non issuance of a certificate.” The parties do not address which
version of the FMRs applies, but neither suggests that any amendment to the rules
bears upon the issues presented.
2