FILED
NOT FOR PUBLICATION
APR 05 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAURA KNIGHT; MARK KNIGHT, No. 16-35895
Plaintiffs-Appellants, D.C. No. 9:15-cv-00056-DLC
v.
MEMORANDUM*
WELLS FARGO BANK, N.A.; HSBC
BANK USA, N.A.,
Defendants-Appellees.
LAURA KNIGHT; MARK KNIGHT, No. 16-35937
Plaintiffs-Appellees, D.C. No. 9:15-cv-00056-DLC
v.
WELLS FARGO BANK, N.A.; HSBC
BANK USA, N.A.,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted March 8, 2018
Seattle, Washington
Before: RAWLINSON and CHRISTEN, Circuit Judges, and FREUDENTHAL,**
Chief District Judge.
Appellants/Cross-Appellees Laura Knight and Mark Knight (Knights)
appeal the district court’s order granting judgment on the pleadings on their
negligent misrepresentation, negligence, constructive fraud, and Montana
Consumer Protection Act (MCPA) claims, and the district court’s grant of
summary judgment on their declaratory judgment claim in favor of
Appellees/Cross-Appellants Wells Fargo Bank, N .A. and HSBC Bank USA, N.A.,
(Wells Fargo). The Knights contend that the district court erred in holding that
their claims were barred by the applicable statutes of limitations.
The district court properly held that the continuing tort doctrine did not toll
the statutes of limitations for the Knights’ negligence, negligent misrepresentation,
constructive fraud, and MCPA claims. The Knights’ tort claims accrued no later
than 2011, based on their allegations that “on January 10, 2011, [they] knew that
they had a foreclosure sale pending within the next few months,” and sent a cease
and desist letter to Wells Fargo “[a]fter conducting research into the issue of Wells
**
The Honorable Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
2
Fargo’s rights to foreclose.” The continuing tort doctrine affords no relief from the
statutes of limitation because the Knights were “aware of [their] injuries, of the
cause of those injuries and of the fact that [they] had a cause of action” due to
Wells Fargo’s initiation of foreclosure proceedings. Gomez v. State, 975 P.2d
1258, 1263 (Mont. 1999). Dismissal of their claims was warranted because the
Knights did not file their action until 2015, well beyond the applicable statutes of
limitation. See Mont. Code Ann. § 27-2-203 (establishing a two-year statute of
limitations for claims premised on “fraud or mistake”); Mont. Code Ann. §
27-2-204(1) (establishing a three-year statute of limitations for tort claims “not
founded upon an instrument in writing”); Osterman v. Sears, Roebuck & Co., 80
P.3d 435, 441 (Mont. 2003) (recognizing that a two-year statute of limitations
applies to claims for unfair or deceptive practices).
The eight-year statute of limitations for contract actions pursuant to Mont.
Code Ann. § 27-2-202(1) does not govern the Knights’ declaratory judgment
claim. The gravamen of the Knights’ complaint is that Wells Fargo engaged in
tortious conduct involving conversion of the deed of trust during the assignment
process. See Tin Cup Cty. Water & Sewer Dist. v. Garden City Plumbing &
Heating, Inc., 200 P.3d 60, 67 (Mont. 2008) (explaining that the eight-year statute
of limitations for contract actions applies “only if the gravamen of [the] complaint
3
sounds in contract”). Interpretation of the deed of trust is unnecessary to resolve
the Knights’ declaratory judgment claim because the Knights do not “point to the
violation of a specific contractual provision” in the deed of trust as required for
their complaint “to sound in contract.” Id. The district court correctly determined
that the three-year statute of limitations for conversion barred the Knights’
declaratory judgment claim based on the gravamen of their complaint. See id.; see
also Mont. Code Ann. § 30-3-122(7) (providing that “an action for conversion of
an instrument . . . must be commenced within 3 years after the cause of action
accrues”).1
AFFIRMED.
1
Because we affirm the district court’s dismissal of the Knights’ claims
based on the statutes of limitations, we need not, and do not, address the alternative
grounds for affirming raised in Wells Fargo’s cross-appeal.
4