John Florendo v. Bank of New York Mellon

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN G. FLORENDO; DEBORAH P. No. 21-16461
FLORENDO,
D.C. No. 2:20-cv-02088-APG-DJA
Plaintiffs-Appellants,
v. MEMORANDUM*
BANK OF NEW YORK MELLON, FKA
Bank of New York, as successor trustee to JP
Morgan Chase Bank, NA, as trustee for the
holders of SAMI II trust 2006-AR7,
mortgage pass-through certificates, series
2006-AR7,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted January 18, 2023**
Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.
*
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).
John G. Florendo and Deborah P. Florendo appeal pro se from the district
court’s judgment dismissing their diversity action alleging a quiet title claim. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.
Plaintiffs’ quiet title claim is based on the applicability of Nevada Revised
Statutes (“NRS”) 106.240. See Pro-Max Corp. v. Feenstra, 16 P.3d 1074, 1077
(Nev. 2001) (“NRS 106.240 creates a conclusive presumption that a lien on real
property is extinguished ten years after the debt becomes due.”). However,
“because a notice of rescission rescinds a previously recorded notice of default, the
notice of rescission effectively cancelled the acceleration triggered by the notice of
default, such that NRS 106.240’s 10-year period was reset.” SFR Invs. Pool 1,
LLC v. U.S. Bank N.A., 507 P.3d 194, 196 (Nev. 2022) (citation and internal
quotation marks omitted). Because NRS 106.240 is inapplicable, the district court
properly dismissed plaintiffs’ action for failure to allege facts sufficient to state a
plausible quiet title claim.
The district court did not abuse its discretion by denying plaintiffs leave to
amend because amendment would have been futile. See Cervantes v. Countrywide
Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of
review and explaining that a district court may dismiss without leave to amend
2 21-16461
when amendment would be futile).
AFFIRMED.
3 21-16461