Susan Closson v. the Bank of New York Mellon

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 25, 2023
• Docket: 21-16545
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SUSAN CLOSSON; CHARLES R. No. 21-16545 CLOSSON, D.C. No. 2:20-cv-02229-APG-DJA Plaintiffs-Appellants,

v. MEMORANDUM*

THE BANK OF NEW YORK MELLON, FKA The Bank of New York, Successor Trustee To JPMorgan Chase Bank, N.A. as Trustee for the Bear Stearns Arm Trust, Mortgage Passthrough Certificate, Series 2003-7; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,

Defendants-Appellees.

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

Submitted January 18, 2023**

Before: GRABER, PAEZ, and NGUYEN, 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). Susan Closson and Charles R. Closson appeal pro se from the district court’s

judgment dismissing their diversity action alleging a quiet title claim. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.

Plaintiffs’ quiet title claim is based on the applicability of Nevada Revised

Statutes (“NRS”) 106.240. See Pro-Max Corp. v. Feenstra, 16 P.3d 1074, 1077

(Nev. 2001) (“NRS 106.240 creates a conclusive presumption that a lien on real

property is extinguished ten years after the debt becomes due.”). However,

“because a notice of rescission rescinds a previously recorded notice of default, the

notice of rescission effectively cancelled the acceleration triggered by the notice of

default, such that NRS 106.240’s 10-year period was reset.” SFR Invs. Pool 1,

LLC v. U.S. Bank N.A., 507 P.3d 194, 196 (Nev. 2022) (citation and internal

quotation marks omitted). Because NRS 106.240 is inapplicable, the district court

properly dismissed plaintiffs’ action for failure to allege facts sufficient to state a

plausible quiet title claim.

The district court did not abuse its discretion by denying plaintiffs leave to

amend because amendment would have been futile. See Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of

review and explaining that a district court may dismiss without leave to amend

2 21-16545 when amendment would be futile).

AFFIRMED.

3 21-16545