James Song v. Mtc Financial, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 29, 2019
• Docket: 18-16177
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 29 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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).

3 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.