NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
U.S. BANK, N.A., as Trustee for the No. 17-16399
Specialty Underwriting and Residential
Finance Trust Mortgage Loan Asset-Backed D.C. No.
Certificates Series 2006-BC4, 3:16-cv-00501-RCJ-WGC
Plaintiff-Appellant,
MEMORANDUM*
v.
THUNDER PROPERTIES, INC.,
Defendant-Appellee,
and
WESTLAND REAL ESTATE
DEVELOPMENT AND INVESTMENTS,
Defendant.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and submitted September 13, 2019
Submission withdrawn October 2, 2019
Re-submitted February 15, 2022
San Francisco, California
Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appellant U.S. Bank appeals from the district court’s order dismissing its
claim against Appellee Thunder Properties, Inc. (“Thunder”) for a declaratory
judgment that U.S. Bank’s first deed of trust on a residential property owned by
Thunder remains a present interest in the property. We have jurisdiction under 28
U.S.C. § 1291. We vacate the district court’s order dismissing U.S. Bank’s action
and remand for further proceedings.
Appellant U.S. Bank held a first deed of trust on a residential property in
Cold Springs, Nevada. After the property owners fell behind on their homeowners
association (“HOA”) assessments, the HOA proceeded with a foreclosure sale,
recording its election to sell the property in April 2010, selling the property in
February 2011, and recording the sale on the same day it occurred. The buyer later
sold the property to Westland Real Estate Development and Investments, which
transferred its interest in the property to Appellee Thunder Properties, Inc.
(“Thunder”).
In August 2016, U.S. Bank sued Thunder in the United States District Court
for the District of Nevada. U.S. Bank sought a declaration to quiet title, arguing
that its deed of trust was not extinguished by the foreclosure sale and remains a
present interest in the property. The district court granted Thunder’s motion to
dismiss U.S. Bank’s claim for declaratory relief. The district court applied the
five-year statute of limitations set forth in Nevada Revised Statutes §§ 11.070 and
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11.080 for certain quiet title actions, reasoning that U.S. Bank’s claim accrued and
the five-year limitations period started to run on February 10, 2011, when the
foreclosure sale took place and was recorded. The district court thus held that the
claim was time-barred by the time U.S. Bank filed its Complaint in August 2016,
approximately five and a half years later. U.S. Bank appealed the dismissal of its
claim to this court.
We vacated submission, stayed further proceedings, and certified the
following questions to the Nevada Supreme Court:
(1) When a lienholder whose lien arises from a mortgage for the
purchase of a property brings a claim seeking a declaratory judgment
that the lien was not extinguished by a subsequent foreclosure sale of
the property, is that claim exempt from statute of limitations under
City of Fernley v. Nevada Department of Taxation, 366 P.3d 699
(Nev. 2016)?
(2) If the claim described in (1) is subject to a statute of limitations:
(a) Which limitations period applies?
(b) What causes the limitations period to begin to run?
U.S. Bank, N.A. v. Thunder Props., Inc., 958 F.3d 794, 796 (9th Cir. 2020).
The Nevada Supreme Court accepted these certified questions and, on
February 3, 2022, issued an opinion answering them. U.S. Bank, N.A. v. Thunder
Props., Inc., No. 81129, 2022 WL 332614 (Nev. Feb. 3, 2022). The court held that
declaratory relief actions are not categorically exempt from statutes of limitations
under Nevada law, id. at *1-2, and that Nevada’s four-year catch-all statute of
limitations, Nev. Rev. Stat. § 11.220, applies to actions like this one to determine
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the validity of a lien, id. at *3. The court further held that the statute of limitations
does not begin to run until the titleholder affirmatively repudiates the lien or takes
some action that is otherwise inconsistent with the lien’s continued existence, id. at
*5—and the court specified that a foreclosure sale does not necessarily meet these
criteria for starting the limitations period, id. at *5-6.
On the record before us, we cannot determine whether such an action
triggering the running of the limitations period has occurred and, consequently, we
cannot determine whether U.S. Bank’s action is time-barred by the four-year
limitations period. Accordingly, we vacate the district court’s order dismissing
U.S. Bank’s action and remand for further proceedings consistent with the Nevada
Supreme Court’s opinion answering our certified questions.
VACATED and REMANDED.
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