James Song v. Mtc Financial, Inc. ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES S. SONG and ADRIENNE SONG, No. 18-16177
Plaintiffs-Appellants, D.C. No.
2:18-cv-00757-JCM-PAL
v.
MTC FINANCIAL, INC., DBA Trustee MEMORANDUM*
Corps; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, Senior District Judge, Presiding
Submitted December 20, 2018**
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and MÁRQUEZ,*** District
Judge.
James and Adrienne Song appeal from a district court order denying their
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
request for a preliminary injunction preventing the foreclosure sale of their home.
We have jurisdiction under 28 U.S.C. § 1292 and review for an abuse of discretion.
Epona, LLC v. County of Ventura, 876 F.3d 1214, 1219 (9th Cir. 2017) (citing
Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1045 (9th
Cir. 1999)). We affirm.
Plaintiffs seeking preliminary injunctive relief must show, among other
things, that they are likely to prevail on the merits. Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). The district court did not clearly err in
determining that the Songs’ claims had accrued by February 2013, more than five
years before the Songs initiated suit. See Kingman Reef Atoll Invs., L.L.C. v.
United States, 541 F.3d 1189, 1195 (9th Cir. 2008) (applying clear-error standard).
Therefore, it was not an abuse of discretion for the district court to conclude that
the applicable statutes of limitations—the longest of which is four years—bar the
Songs’ claims for promissory estoppel, fraudulent and intentional
misrepresentation, negligent misrepresentation, fraud, civil conspiracy, and slander
of title.
Nor did the district court abuse its discretion by concluding that the Songs
are unlikely to succeed on the merits of their claim for declaratory relief. Under
Nevada law, a lender may foreclose nonjudicially on a deed of trust, even where
the statute of limitations has run on the corresponding promissory note. See
2
Facklam v. HSBC Bank USA, 401 P.3d 1068, 1071 (Nev. 2017) (describing “long-
standing precedent that a lender may recover on a deed of trust even after the
statute of limitations for contractual remedies on the note has passed”). Thus, the
Songs are unlikely to obtain a declaration that the expiration of the statute of
limitations on the promissory note precludes the foreclosure of their home.
The Songs argue in this appeal that they are likely to succeed on their claim
for declaratory relief because the lender lacks authority to foreclose as a result of
allegedly fraudulent transfers of the loan documents. Their argument fails,
however, because they pleaded no such claim in their amended verified complaint.
The Songs sought declarations relating to the expiration of the statute of
limitations; they did not seek a declaration that the lender engaged in fraudulent
conduct and thus lacks authority to foreclose. See Fed. R. Civ. P. 57 advisory
committee notes to 1937 adoption (“The demand for relief shall state with
precision the declaratory judgment relief” desired (emphasis added)). Because the
likelihood-of-success determination is necessarily made by reference to the claims
alleged in the complaint, the Songs’ omission renders the lender’s alleged lack of
authority to foreclose inconsequential. See Fed. Trade Comm’n v. Simeon Mgmt.
Corp., 532 F.2d 708, 714–17 (9th Cir. 1976) (describing three claims advanced in
administrative complaint and separately analyzing plaintiff’s likelihood of success
on each).
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Because the Songs failed to establish a likelihood of success on the merits,
we need not address their contention that the district court erred in evaluating the
other Winter elements. See Glob. Horizons, Inc. v. U.S. Dep’t of Labor, 510 F.3d
1054, 1058 (9th Cir. 2007) (“Once a court determines a complete lack of
probability of success or serious questions going to the merits, its analysis may
end, and no further findings are necessary.”).
AFFIRMED.
4