Bank of New York Mellon v. 2167 Maple Heights Trust

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 13, 2020
• Docket: 19-15520
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BANK OF NEW YORK MELLON, FKA No. 19-15520 Bank of New York, as Trustee for the Certificateholders of CWALT, Inc., D.C. No. Alternative Loan Trust 2005-13CB, 2:17-cv-02161-APG-PAL Mortgage Pass-Through Certificates, Series 2005-13CB, MEMORANDUM* Plaintiff-counter- defendant-Appellee,

v.

SUN CITY ANTHEM COMMUNITY ASSOCIATION, INC.; RED ROCK FINANCIAL SERVICES, LLC,

Defendants,

and

2167 MAPLE HEIGHTS TRUST,

Defendant-counter-claimant- Appellant.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted July 9, 2020** Seattle, Washington

Before: HAWKINS, D.M. FISHER,*** and M. SMITH, Circuit Judges.

We have jurisdiction over this diversity quiet title dispute pursuant to 28

U.S.C. § 1291. Because we conclude that Appellant 2167 Maple Heights Trust’s

(Maple Heights) only argument on appeal was waived, we affirm the district

court’s grant of summary judgment for Appellee Bank of New York Mellon

(BNY).

Maple Heights’s single argument on appeal is that BNY’s quiet title action

was barred by the three-year statute of limitations in Nev. Rev. Stat. §

11.190(3)(a). However, Maple Heights concedes that it failed to raise its statute of

limitations argument before the district court, and fails to make a compelling

argument as to why we should consider it now.

We may consider an issue raised for the first time on appeal “under certain

narrow circumstances,” and only where consideration of the issue will not

prejudice the opposing party. Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996)

(citation omitted). We may exercise our discretion to consider such an argument in

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation.

2 order “(1) to prevent a miscarriage of justice; (2) when a change in law raises a

new issue while an appeal is pending; and (3) when the issue is purely one of law.”

AlohaCare v. Hawaii Dep’t of Human Servs., 572 F.3d 740, 744–45 (9th Cir.

2009) (internal quotation marks and citation omitted).

Maple Heights argues that considering the statute of limitations applicable

here would be “important to the public.” But this argument is negated by the fact

that several Ninth Circuit panels are further along in the process of deciding the

precise issue argued by Maple Heights, including one panel which has certified

related questions to the Nevada Supreme Court. See Order Certifying Questions to

the Nevada Supreme Court, U.S. Bank, N.A. v. Thunder Props., Inc., Case No. 17-

16399 (9th Cir. May 1, 2020), ECF No. 62; see also Order, Prof-2013-S3 Legal

Title Tr. v. SFR Invs. Pool 1, LLC, No. 19-15260 (9th Cir. Apr. 3, 2020), ECF No.

51.

Maple Heights also argues that intervening case law made its statute of

limitations argument viable. But the single case that Maple Heights cites for this

proposition does not concern the statute of limitations applicable to quiet title or

declaratory relief actions like these. See Bank of Am., N.A. v. SFR Invs. Pool 1,

LLC, 427 P.3d 113 (Nev. 2018) (“Diamond Spur”) (en banc). Maple Heights

seems to argue that Diamond Spur, issued in September of 2018, opened the door

to certain new arguments to be made by banks like BNY here. But the district

3 court docket confirms that Diamond Spur, which came down well before the

district court ruled on summary judgment, only supplemented the tender arguments

already made by BNY in its summary judgment briefing. See Dist. Ct. Dkt. Nos.

28, 36, 45 (Diamond Spur filed without additional argument). Moreover, between

the time that BNY filed Diamond Spur as supplemental authority and the district

court’s summary judgment ruling, five months elapsed in which Maple Heights

could have raised its statute of limitations argument. See Dist. Ct. Dkt. Nos. 45–

47. Maple Heights does not point to any other intervening change in law or

circumstance that explains its failure to raise the statute of limitations issue before

the district court.

Accordingly, although we agree that the question of whether the three-year

statute of limitations in Nev. Rev. Stat. § 11.190(3)(a) applies here is a pure

question of law, see Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1005 (9th Cir.

2011), Maple Heights nevertheless fails to convince us that “exceptional

circumstances,” AlohaCare, 572 F.3d at 744, are present here such that we should

exercise our discretion to hear its waived legal argument.

AFFIRMED.