Thomas v. Federal National Mortgage Ass'n

FILED
NOT FOR PUBLICATION JAN 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KIMBERLEY H. THOMAS, No. 09-17312
Plaintiff - Appellant, D.C. No. 3:09-cv-00398-LRH-
VPC
v.
FEDERAL NATIONAL MORTGAGE MEMORANDUM *
ASSOCIATION, a D.C. domestic non-
profit corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted January 12, 2011 **
San Francisco, California
Before: KOZINSKI, Chief Judge, NOONAN and SILVERMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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Kimberley Thomas appeals the district court’s dismissal of her complaint,
which alleged wrongful foreclosure, improper notice of default, and violation of
the Fair Debt Collection Practices Act.
Thomas waived any arguments about the dismissal of her wrongful
foreclosure and FDCPA claims by failing to raise them in her opening brief. See
Nisqually Indian Tribe v. Gregoire, 623 F.3d 923, 928 n.6 (9th Cir. 2010). We
affirm the dismissal of these claims.
We affirm the dismissal of Thomas’s first improper notice of default
claim, which alleged that the notice deprived Thomas of an opportunity to cure her
default. The notice informed Thomas that she could bring her account into good
standing by paying the past-due amounts no later than five days before the
foreclosure sale. At the time of Thomas’s foreclosure, Nevada law required no
more than this. See Nev. Rev. Stat. § 107.080(3) (2008). Thomas’s deed of trust
contained an acceleration clause, and the notice of default was therefore allowed to
contained a notice of acceleration. See id. Because the text of the notice of default
contradicts Thomas’s claim that the notice failed to inform her of her right to cure,
the district court correctly dismissed this claim, and we affirm.
We affirm the dismissal of Thomas’s second improper notice of default
claim. Thomas never alleged that the trustee wasn’t acting within his authority on
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the day of the foreclosure sale, cf. Gomez v. Countrywide Bank, FSB., No. 2:09-cv-
01489, 2009 WL 3617650, at *7 (D. Nev. Oct. 26, 2009), or that she was denied a
reasonable opportunity to cure her default because the notice listed the wrong
beneficiary and trustee, see Title Ins. & Trust Co. v. Chi. Title Ins. Co., 634 P.2d
1216, 1218 (Nev. 1981). Absent such allegations, we must conclude that the sale
substantially complied with Nevada law. See Nev. Rev. Stat. § 107.080(5)(a);
Hankins v. Adm’r of Veterans Affairs, 555 P.2d 483, 484 (Nev. 1976).
AFFIRMED.