FILED
NOT FOR PUBLICATION
OCT 18 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE BANK OF NEW YORK MELLON, No. 20-15798
FKA The Bank of New York, as Trustee
for the Certificateholders CWABS, Inc. D.C. No.
Asset-Backed Certificates, Series 2006-6, 2:16-cv-02561-RFB-BNW
Plaintiff-counter-
defendant-Appellant, MEMORANDUM*
v.
STAR HILL HOMEOWNERS
ASSOCIATION,
Defendant-Appellee,
SFR INVESTMENTS POOL 1, LLC,
Defendant-counter-claimant-
Appellee,
and
SBW INVESTMENTS LLC; NEVADA
ASSOCIATION SERVICES, INC.,
Defendants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Argued and Submitted October 2, 2023
Las Vegas, Nevada
Before: RAWLINSON and OWENS, Circuit Judges, and FITZWATER,** District
Judge.
The Bank of New York Mellon (BNYM) appeals the district court’s
summary judgment in favor of Appellees, SFR Investments Pool 1, LLC (SFR),
and Star Hill Homeowners Association (the HOA) (collectively, Appellees),
concluding that BNYM’s claims were time-barred. Because the district court did
not have the benefit of the Nevada Supreme Court’s decision in U.S. Bank, N.A. v.
Thunder Properties, Inc., 503 P.3d 299 (Nev. 2022) (en banc), we vacate and
remand for the district court to apply that ruling in the first instance.
The district court used the date of the foreclosure sale of the property as the
triggering date for the statutes of limitations. However, in Thunder Properties, the
Nevada Supreme Court concluded that a foreclosure sale alone does not trigger the
running of the statute of limitations for quiet title actions. See 503 P.3d at 306-07.
Rather, “notice of some affirmative action by the titleholder to repudiate the lien or
**
The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
2
that is otherwise inconsistent with the lien’s continued existence” is required to
trigger the running of the limitations period. Id. at 306.
As the district court did not consider whether Appellees affirmatively
repudiated the deed of trust, remand for the district court to consider this issue in
the first instance is appropriate. See Coomes v. Edmonds Sch. Dist. No. 15, 816
F.3d 1255, 1265 (9th Cir. 2016) (vacating the federal district court’s judgment due
to intervening authority).1
VACATED AND REMANDED.
1
Because we resolve this appeal on this basis, we need not and do not reach
BNYM’s alternative arguments.
3