Silvia Lasko v. Caliber Home Loans, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2022
• Docket: 20-17181
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SILVIA REGINA LASKO; KEITH No. 20-17181 ALAN LASKO, D.C. No. 2:18-cv-01802-GMN-VCF Plaintiffs-Appellants,

and MEMORANDUM*

MOSQUE OF THE GOLDEN RULE; WORLDWIDE MINISTRIES OF ISLAM,

Plaintiffs,

v.

CALIBER HOME LOANS, INC.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Submitted March 10, 2022**

Before: D.W. NELSON, FERNANDEZ, and SILVERMAN, 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). Silvia and Keith Lasko appeal pro se the district court’s orders dismissing

their action under federal and Nevada law against Caliber Home Loans, Inc., and

other defendants. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo the district court’s dismissal for failure to state a claim. Applied

Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir 2019) (citation

omitted). We review for an abuse of discretion the district court’s application of

judicial estoppel and its dismissal for failure to obey a court order. Id.; Hamilton v.

State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). We affirm.

Silvia Lasko is a proper party to this appeal because the signature of her

spouse Keith Lasko on the notice of appeal was sufficient for both appellants. See

Fed. R. App. P. 3(c)(2) (“A pro se notice of appeal is considered filed on behalf of

the signer and the signer’s spouse . . . unless the notice clearly indicates

otherwise.”).

The district court properly exercised its discretion in ruling that Claims 2-4,

10, and 24 were barred by judicial estoppel because the Laskos did not list these

claims on their bankruptcy schedules. See Hamilton, 270 F.3d at 785.

The district court properly dismissed Claims 5-9, 11, and 22-23 for failure to

state a claim. These claims relied on an invalid theory that the Laskos’ promissory

note was unenforceable under Nevada law because it was packaged into an

investment security that severed the note from the deed of trust. See Jones v. U.S.

2 Bank N.A., 460 P.3d 958, 961 (Nev. 2020); Wood v. Germann, 331 P.3d 859, 862

(Nev. 2014); Edelstein v. Bank of New York Mellon, 286 P.3d 249, 252 (Nev.

2012). Any challenge to a foreclosure was unripe because no foreclosure had

taken place. See Ass’n of Irritated Residents v. EPA, 10 F.4th 937, 944 (9th Cir.

2021); SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 449 P.3d 461, 465 (Nev.

2019) (“A foreclosure sale may be set aside if the price obtained is greatly

inadequate and the sale is affected by some irregularity, such as evidence of fraud .

. ..”).

The district court properly dismissed Claim 1, alleging a violation of a

Nevada statute of limitations, and Claim 21, alleging a RICO violation in the

removal of this action to federal court. See United States v. Allahyari, 980 F.3d

684, 686 (9th Cir. 2020) (a statute of limitations is an affirmative defense, not a

cause of action), cert. denied, 2021 WL 4507849 (U.S. Oct. 4, 2021); 18 U.S.C.

§ 1961(1) (RICO predicates).

The district court properly exercised its discretion in dismissing Claims 12-

20 pursuant to Federal Rule of Civil Procedure 41(b). See Fed. R. Civ. P. 41(b)

(The district court may dismiss an action “[i]f the plaintiff fails to prosecute or to

comply with these rules or a court order.”); Harris v. Hangum, 863 F.3d 1133,

1142 (9th Cir. 2017) (“[W]hen a district court dismisses an action because the

plaintiff has not filed an amended complaint after being given leave to do so and

3 has not notified the court of his intention not to file an amended complaint, [the

court of appeals] may deem the dismissal to be for failure to comply with a court

order based on Federal Rule of Civil Procedure 41(b).”) (citations omitted). Our

independent review of the record shows that the dismissal for failure to comply

with a court order was not an abuse of discretion. See Applied Underwriters, 913

F.3d at 890 (listing five relevant factors); see also Ferdik v. Bonzelet, 963 F.2d

1258, 1261-62 (9th Cir. 1992).

AFFIRMED.