US Bank v. Thunder Properties, Inc. ( 2020 )

FOR PUBLICATION
UNITED STATES 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 D.C. No.
Loan Asset-Backed Certificates 3:16-cv-00501-
Series 2006-BC4, RCJ-WGC
Plaintiff-Appellant,
v. ORDER
CERTIFYING
THUNDER PROPERTIES, INC., QUESTIONS
Defendant-Appellee, TO THE
NEVADA
and SUPREME
COURT
WESTLAND REAL ESTATE
DEVELOPMENT AND INVESTMENTS,
Defendant.
Filed May 1, 2020
Before: Ronald M. Gould, Carlos T. Bea, and
Michelle T. Friedland, Circuit Judges.
Order
2 U.S. BANK V. THUNDER PROPERTIES
SUMMARY *
Certification to Nevada Supreme Court
The panel certified to the Nevada Supreme Court the
following questions:
(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?
The case arose out of a Nevada statutory scheme that
permits a homeowners association to attach a lien with
partial superpriority status to a homeowner’s property. See
Nev. Rev. Stat. § 116.3116.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
U.S. BANK V. THUNDER PROPERTIES 3
ORDER
GOULD, Circuit Judge, Presiding:
Pursuant to Rule 5 of the Nevada Rules of Appellate
Procedure, we certify to the Nevada Supreme Court the
questions of law set forth in Part II of this order. The
answers to these questions “may be determinative of the
cause” pending before this court, and there appears to be “no
controlling precedent in the decisions of the [Nevada]
Supreme Court or Court of Appeals.” Nev. R. App. P. 5(a).
Further proceedings in this court are stayed pending the
result of certification, and submission remains withdrawn
pending further order.
I.
Plaintiff-Appellant, U.S. Bank, N.A., as Trustee for the
Specialty Underwriting and Residential Finance Trust
Mortgage Loan Asset-Backed Certificates Series 2006-BC4
(“U.S. Bank”), will be the appellant before the Nevada
Supreme Court. Counsel for U.S. Bank are Ariel E. Stern,
Melanie D. Morgan, and Rex D. Garner, Akerman LLP,
1635 Village Center Circle, Suite 200, Las Vegas, Nevada
89134.
Defendant-Appellee, Thunder Properties, Inc.
(“Thunder”), will be the respondent before the Nevada
Supreme Court. Counsel for Thunder are Roger P. Croteau
and Timothy E. Rhoda, Roger P. Croteau and Associates,
Ltd., 9120 West Post Road, Suite 100, Las Vegas, Nevada
89148.
4 U.S. BANK V. THUNDER PROPERTIES
II.
The questions of law we certify are:
(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?
We recognize that the Nevada Supreme Court may, in its
discretion, reword the certified questions. Progressive Gulf
Ins. Co. v. Faehnrich, 627 F.3d 1137, 1140 (9th Cir. 2010).
III.
This case arises out of a Nevada statutory scheme that
permits a homeowners association (“HOA”) to attach a lien
with partial superpriority status to a homeowner’s property.
See Nev. Rev. Stat. § 116.3116. “The portion of the lien
with superpriority status consists of the last nine months of
unpaid HOA dues and any unpaid maintenance and
nuisance-abatement charges.” Bank of Am., N.A. v.
Arlington W. Twilight Homeowners Ass’n, 920 F.3d 620,
622 (9th Cir. 2019). “With a few exceptions, the
superpriority portion is superior to all other liens on the
property, including the first deed of trust held by the
mortgage lender,” which “means that an HOA can
U.S. BANK V. THUNDER PROPERTIES 5
extinguish the first deed of trust by foreclosing on its
superpriority lien.” Id.
In 2006, Michelle and Bryan Rodriguez purchased a
property in Cold Springs, Nevada, by means of a loan
secured by a deed of trust on the property. The deed of trust
was assigned to U.S. Bank in 2009. By February 2010, the
Rodriguezes had fallen behind on their HOA assessments,
and the HOA recorded a notice of delinquent assessment and
claimed a superpriority lien against the property under
Nevada Revised Statutes § 116.3116 for the amount owed.
The debt was not satisfied and 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 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 declaratory judgment that, because of alleged
constitutional and statutory infirmities in the foreclosure
process, the foreclosure sale is either void or at least U.S.
Bank’s interest in the Cold Springs property had survived the
foreclosure sale, such that “Thunder acquired the property
subject to U.S. Bank’s senior deed of trust.” 1
The district court granted Thunder’s motion to dismiss
U.S. Bank’s claim for declaratory relief. It concluded that
U.S. Bank was “seek[ing] to quiet title,” so the five-year
statute of limitations set forth in Nevada Revised Statutes
§§ 11.070 and 11.080 for certain quiet title actions applied.
1
U.S. Bank also asserted other claims that are not at issue here.
6 U.S. BANK V. THUNDER PROPERTIES
The district court reasoned that U.S. Bank’s claim accrued
and the five-year limitations period started to run on
February 10, 2011, when the foreclosure sale that purported
to extinguish U.S. Bank’s mortgage lien 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.
IV.
A.
The first issue on appeal is whether U.S. Bank’s claim is
subject to a statute of limitations at all. U.S. Bank argues
that under City of Fernley v. Nevada Department of
Taxation, 366 P.3d 699 (Nev. 2016), no statute of limitations
applies to its claim for declaratory relief.
In City of Fernley, a city government challenged the
constitutionality of a state tax provision, seeking money
damages for tax revenue the state allegedly owed to the city,
as well as a declaration that the provision was
unconstitutional and a corresponding injunction against its
application. Id. at 705 & n.4. The Nevada Supreme Court
held that the city’s claim for money damages was time-
barred, but that its claims for declaratory and injunctive
relief were not. Id. at 707–08. The court reasoned that “[t]he
statute of limitations applies differently depending on the
type of relief sought.” Id. at 706. The claim for damages
sought “retrospective relief” and was untimely. Id. at 707–
08. The court held that, by contrast, “the statute of
limitations d[id] not bar [the city’s] claims for injunctive and
declaratory relief from an allegedly unconstitutional
statute.” Id. at 707. In so holding, the court cited with
approval the Michigan Supreme Court’s statement that
U.S. BANK V. THUNDER PROPERTIES 7
statutes of limitations “do[] not prevent a taxpayer from
seeking to enjoin a governmental unit from imposing on him
in the future taxes that violate the [constitution],” because
taxpayers “retain the right to prevent future violations of
their rights.” Id. (second alteration in original) (quoting
Taxpayers Allied for Constitutional Taxation v. Wayne
County, 537 N.W.2d 596, 599–600 (Mich. 1995)).
Following this principle, the Nevada Supreme Court
concluded that the city’s bid to have the tax provision
enjoined and declared unconstitutional was not time-barred
“because claimants retain the right to prevent future
violations of their constitutional rights.” Id. at 708.
U.S. Bank insists that its claim here is akin to the claims
for declaratory and injunctive relief in City of Fernley
because its “present and prospective rights are unclear” and
“it does not know whether it may legally foreclose its
[mortgage lien].” Although there are differences between
U.S. Bank’s claim and claims seeking “to prevent future
violations of . . . constitutional rights,” id., that may cause
City of Fernley not to govern here, we are not aware of any
Nevada Supreme Court or Court of Appeals precedent that
clearly addresses whether a claim like U.S. Bank’s is subject
to a statute of limitations. We therefore certify that question.
B.
If U.S. Bank’s claim is subject to a statute of limitations,
it is not clear under current Nevada law which limitations
period should be imposed. Nevada courts focus on “[t]he
nature of the claim, not its label, [to] determine[] what statute
of limitations applies.” Perry v. Terrible Herbst, Inc.,
383 P.3d 257, 260 (Nev. 2016). Where, as here, a claim does
not fit neatly within any statute of limitations, “courts look
to analogous causes of action for which an express
limitations period is available” and may “borrow the most
8 U.S. BANK V. THUNDER PROPERTIES
suitable statute of limitations on the basis of the nature of the
cause of action or of the right sued upon.” Id. (quotation
marks omitted). If no limitations period expressly applies or
is sufficiently analogous to be “borrowed,” Nevada law
imposes a four-year catch-all statute of limitations. See Nev.
Rev. Stat. § 11.220 (“An action for relief, not hereinbefore
provided for, must be commenced within 4 years after the
cause of action shall have accrued.”).
We see the claims governed by the five-year limitations
period prescribed in Nevada Revised Statutes §§ 11.070 and
11.080 as the most analogous to U.S. Bank’s claim, but it is
unclear whether they are analogous enough to prevent the
four-year catch-all statute of limitations from applying
instead of a five-year statute of limitations. 2 Section 11.070
requires that an action “founded upon the title to real
2
The parties propose two other statutes of limitations, neither of
which seems apposite here. U.S. Bank argues that Nevada Revised
Statutes § 106.240, which provides that a mortgage debt is “conclusively
presumed” to have been “regularly satisfied and the lien discharged” ten
years after it becomes wholly due, amounts to a ten-year limitations
period for foreclosures on a mortgage lien. But the Nevada Supreme
Court has held that a provision closely analogous to Nevada Revised
Statutes § 106.240 “does not operate as a statute of limitations.” See
Saticoy Bay LLC Series 2021 Gray Eagle Way v. JPMorgan Chase Bank,
N.A., 388 P.3d 226, 232 (Nev. 2017) (discussing Nevada Revised
Statutes § 116.3116(6) (2013)).
Thunder contends that Nevada Revised Statutes § 11.190(3)(a),
which sets forth a three-year statute of limitations for certain “action[s]
upon a liability created by statute,” applies here. U.S. Bank’s action,
however, alleges only that U.S. Bank suffered an injury created by the
HOA foreclosure scheme at Nevada Revised Statutes § 116.3116, not
that the statute has created liability flowing from Thunder to U.S. Bank.
See Torrealba v. Kesmetis, 178 P.3d 716, 722 (Nev. 2008) (explaining
that “[t]he phrase ‘liability created by statute’ means a liability which
would not exist but for the statute” (quotation marks omitted)).
U.S. BANK V. THUNDER PROPERTIES 9
property” may only be brought if the plaintiff “was seized or
possessed of the premises in question within 5 years” before
its lawsuit. Section 11.080 similarly provides that “[n]o
action for the recovery of real property . . . shall be
maintained[] unless it appears that the plaintiff . . . was
seized or possessed of the premises in question, within
5 years before the commencement thereof.” The district
court in this case applied the five-year limitations period
after characterizing U.S. Bank’s request for a declaratory
judgment as a “quiet title claim[].”
On appeal, both parties agree that sections 11.070 and
11.080 do not apply by their terms to U.S. Bank’s claim. We
too think that neither section 11.070 nor section 11.080 is
expressly applicable because U.S. Bank’s suit is not
“founded upon the title to real property,” but rather on a lien
arising out of a deed of trust. See Nev. Rev. Stat § 11.070.
Accordingly, U.S. Bank is seeking only the preservation of
its lien interest, and not “the recovery of real property.” See
Nev. Rev. Stat § 11.080. If U.S. Bank were to prevail, it
would secure a declaration that its lien interest survived the
HOA foreclosure sale. It would not get title to or possession
of the property.
Nevertheless, in the absence of a statute of limitations
that expressly covers U.S. Bank’s claim, we think it is
possible that the Nevada Supreme Court may determine that
sections 11.070 and 11.080 provide “the most suitable
statute of limitations” to “borrow” because the quiet title
claims governed by those sections are sufficiently analogous
to U.S. Bank’s request for a declaratory judgment regarding
the validity of its lien interest. See Perry, 383 P.3d at 260
(quotation marks omitted). On the other hand, it is possible
that the Nevada Supreme Court may conclude that U.S.
Bank’s claim does not so “closely resemble[]” quiet title
10 U.S. BANK V. THUNDER PROPERTIES
actions under sections 11.070 and 11.080 as to justify
borrowing the five-year limitations period, see id., and that
the four-year catch-all limitations period in Nevada Revised
Statutes § 11.220 therefore applies instead. 3
C.
If the Nevada Supreme Court determines that U.S.
Bank’s claim is subject to a statute of limitations, and
identifies the appropriate limitations period to apply, we
3
Federal district courts in Nevada have overseen a substantial
number of cases raising claims similar to U.S. Bank’s in recent years and
have been split on the appropriate statute of limitations to apply. Some
courts have imposed the five-year limitations period prescribed by
Nevada Revised Statutes §§ 11.070 and 11.080. See, e.g., Deutsche
Bank Nat’l Tr. Co. v. SFR Invs. Pool 1, LLC, No. 2:18-cv-597, 2019 WL
4738005, at *4 (D. Nev. Sept. 27, 2019); JPMorgan Chase Bank, N.A.
v. SFR Invs. Pool 1, LLC, No. 2:16-cv-2005, 2017 WL 3317813, at *2
(D. Nev. Aug. 2, 2017); Nationstar Mortg., LLC v. Falls at Hidden
Canyon Homeowners Ass’n, No. 2:15-cv-01287, 2017 WL 2587926, at
*3 (D. Nev. June 14, 2017). Others have resorted to the four-year catch-
all limitations period. See, e.g., JPMorgan Chase Bank, N.A. v. Saticoy
Bay LLC Series 7517 Apple Cider, No. 2:17-cv-02948, 2019 WL
4677013, at *2 (D. Nev. Sept. 25, 2019); Bank of N.Y. Mellon v. Ruddell,
380 F. Supp. 3d 1096, 1100 (D. Nev. 2019); U.S. Bank Nat’l Ass’n v.
SFR Invs. Pool 1, LLC, 376 F. Supp. 3d 1085, 1091 (D. Nev. 2019);
Nationstar Mortg. LLC v. Safari Homeowners Ass’n, No. 2:16-cv-
02542, 2019 WL 121960, at *2 (D. Nev. Jan. 6, 2019); Bank of N.Y. v.
S. Highlands Cmty. Ass’n, 329 F. Supp. 3d 1208, 1213–14 (D. Nev.
2018); Bank of Am., N.A. v. Country Garden Owners Ass’n, No. 2:17-
cv-01850, 2018 WL 1336721, at *2 (D. Nev. Mar. 14, 2018). And at
least one district court has applied the three-year limitations period for
liabilities created by statute codified at Nevada Revised Statutes
§ 11.190(3). See Nationstar Mortg. LLC v. Curti Ranch Two Maint.
Ass’n, Inc., No. 3:17-cv-00699, 2018 WL 1611190, at *3 (D. Nev. Apr.
2, 2018).
U.S. BANK V. THUNDER PROPERTIES 11
finally ask the court to provide guidance regarding when that
limitations period begins to run.
For example, in a quiet title action expressly governed
by section 11.080, the five-year “limitations period is
triggered when the plaintiff is ejected from the property or
has had the validity or legality of his or her ownership or
possession of the property called into question.” Berberich
v. Bank of Am., N.A., — P.3d —, No. 76457, 2020 WL
1501206, at *3 (Nev. Mar. 26, 2020). But if we were to
borrow that statute of limitations in this case, it is not clear
when the limitations period would have started running
because U.S. Bank never had ownership or possession of the
property at issue. We are not certain whether either the
recording of the HOA’s election to foreclose on the
Rodriguezes’ property or the recording of the foreclosure
sale itself was sufficient to put U.S. Bank on notice that the
validity of its lien interest had been called into question.
Although “[o]rdinarily the constructive knowledge of
recording statutes is held to prospective purchasers of
realty,” it “does not necessarily follow” that the same is true
for “possessors of a trust deed” that pre-dated the relevant
recording. Allen v. Webb, 485 P.2d 677, 682 (Nev. 1971)
(emphasis added); see also Berberich, 2020 WL 1501206, at
*3 (holding that “the limitations period . . . begin[s] to run
against a property owner once the owner has notice of
disturbed possession,” without specifying whether the same
rule applies to lienholders). 4
4
We note that federal district courts in Nevada have often, but not
always, held that the limitations period starts running at the time the
foreclosure sale is recorded and that no actual notice is required. See
Bank of N.Y. Mellon v. SFR Invs. Pool 1, LLC, No. 2:17-cv-00388, 2019
WL 2427942, at *2 (D. Nev. June 10, 2019); Bank of N.Y. Mellon v.
12 U.S. BANK V. THUNDER PROPERTIES
The question of what event triggered the limitations
period that may apply to U.S. Bank’s claim—for example,
the Rodriguezes’ being dispossessed of the foreclosed
property or U.S. Bank’s receiving actual notice of the
foreclosure—could be determinative in this case. U.S. Bank
filed this action five and a half years after the foreclosure
sale, but may not have received actual notice of the sale
immediately upon its completion or recordation. Indeed,
further development of the factual record would be needed
in this case to determine when the Rodriguezes were
Williston Inv. Grp. LLC, No. 2:18-cv-00161, 2019 WL 2146586, at *2
(D. Nev. May 16, 2019); Bank of N.Y. v. S. Highlands Cmty. Ass’n,
329 F. Supp. 3d 1208, 1218 (D. Nev. 2018); Bank of N.Y. v. Foothills at
MacDonald Ranch Master Ass’n, 329 F. Supp. 3d 1221, 1233 (D. Nev.
2018); Bank of N.Y. Mellon v. Springs at Centennial Ranch Homeowners
Ass’n, No. 2:17-cv-01673, 2018 WL 1524431, at *2 n.9 (D. Nev. Mar.
28, 2018); Bank of N.Y. Mellon v. S. Terrace Homeowners Ass’n, No.
2:17-cv-00984, 2017 WL 3013254, at *2 (D. Nev. July 14, 2017);
Nationstar Mortg., LLC v. Falls at Hidden Canyon Homeowners Ass’n,
2:15-cv-01287, 2017 WL 2587926, at *2 (D. Nev. June 14, 2017); U.S.
Bank Nat’l Ass’n v. Woodland Village, No. 3:16-cv-00501, 2016 WL
7116016, at *2-3 (D. Nev. Dec. 6, 2016); see also Deutsche Bank Nat’l
Tr. Co. v. SFR Invs. Pool 1, LLC, No. 2:18-cv-597, 2019 WL 4738005,
at *4 (D. Nev. Sept. 27, 2019) (implying that the limitations period began
running when the “deed upon sale” was recorded). But see JPMorgan
Chase Bank, N.A. v. Saticoy Bay LLC Series 7517 Apple Cider, No. 2:17-
cv-02948, 2019 WL 4677013, at *2 (D. Nev. Sept. 25, 2019) (holding
that “the statute of limitations began to run on the date of the foreclosure
sale,” though the court separately held that the plaintiff had pre-sale
notice of the foreclosure); Bank of N.Y. Mellon v. Ruddell, 380 F. Supp.
3d 1096, 1099 (D. Nev. 2019) (holding that “the statute runs from” the
date of the foreclosure sale). Each of the cases holding that the
limitations period begins to run when the foreclosure sale is recorded
relied on an unpublished Nevada Supreme Court decision for that
conclusion—Job’s Peak Ranch Community Association, Inc. v. Douglas
County, No. 55572, 2015 WL 5056232 (Nev. Aug. 25, 2015)—without
considering Allen.
U.S. BANK V. THUNDER PROPERTIES 13
dispossessed of the property or when U.S. Bank received
actual notice of the sale.
V.
This appeal presents open and recurring questions of
Nevada law that “may be determinative” of U.S. Bank’s
claim for declaratory relief. See Nev. R. App. P. 5(a). We
therefore respectfully request that the Nevada Supreme
Court accept and decide the questions certified. “The written
opinion of the [Nevada] Supreme Court stating the law
governing the questions certified . . . shall be res judicata as
to the parties,” Nev. R. App. P. 5(h), and we agree to abide
by the Nevada Supreme Court’s answers to the certified
questions.
Further proceedings in this court are stayed pending final
action by the Nevada Supreme Court. Submission remains
withdrawn pending further order. The Clerk is directed to
administratively close this docket pending further order. The
Clerk of this court shall forward a copy of this order, under
official seal, to the Nevada Supreme Court, along with
copies of all briefs and excerpts of record that have been filed
with this court. The parties shall notify the Clerk of this
court within 14 days of any decision by the Nevada Supreme
Court to accept or decline certification. If the Nevada
Supreme Court accepts certification, the parties shall then
notify the Clerk of this court within 14 days of the issuance
of the Nevada Supreme Court’s opinion.
QUESTIONS CERTIFIED.
/s/ Ronald M. Gould
Ronald M. Gould, Circuit Judge,
Presiding