Patrick Bergsrud v. Bank of America, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2018
• Docket: 17-17181
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PATRICK BERGSRUD, No. 17-17181

Plaintiff-Appellant, D.C. No. 2:14-cv-01592-RFB-GWF

v. MEMORANDUM* BANK OF AMERICA, N.A., FKA Countrywide Home Loans Servicing LP, as Successor by merger to BAC Home Loans Servicing, LP; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Patrick Bergsrud appeals from the district court’s summary judgment in his

diversity action challenging a foreclosure sale. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Bourne Valley Court Tr. V. Wells Fargo

* 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). Bank, NA, 832 F.3d 1154, 1157 (9th Cir. 2016). We affirm.

The district court properly granted summary judgment for defendant Bank of

America, N.A. on Bergsrud’s claims to set aside the foreclosure sale and quiet title

because Bergsrud filed this action after the statute of limitations to challenge

procedural defects to the sale had run, and assuming without deciding that these

deadlines were subject to equitable tolling, Bergsrud failed to establish that

equitable tolling should apply. See Nev. Rev. Stat. § 107.080(5) and (6) (an action

to void a trustee’s sale must commence within 90 days of the date of the sale, or

120 days of the date of actual notice of the sale where the person entitled to notice

did not receive proper notice); City of N. Las Vegas v. State Local Gov’t Emp.-

Mgmt. Relations Bd., 261 P.3d 1071, 1077 (Nev. 2011) (standard under Nevada

law for equitable tolling).

The district court properly granted summary judgment on Bergsrud’s

wrongful foreclosure claim because Bergsrud failed to raise a genuine dispute of

material fact as to whether the property was not in default at the time of the

foreclosure sale. See Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623

(1983) (elements of a wrongful foreclosure claim under Nevada law).

We do not consider matters raised for the first time on appeal, or matters not

specifically and distinctly raised and argued in the opening brief. See Padgett v.

2 17-17181 Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 17-17181