Wells Fargo Bank, N.A. v. Alireza Kaveh

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 19, 2018
• Docket: 17-15888
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS WELLS FARGO BANK, N.A., No. 17-15888

Plaintiff-Appellee, D.C. No. 2:13-cv-01472-GMN-NJK v.

ALIREZA KAVEH, and as Trustee of the MEMORANDUM* Alireza Family Trust; et al.,

Defendants-Appellants,

and

ALI KAVEH, AKA Alireza Kaveh, Sr. and MOLOUK KAVEH, and as Trustee of the Kaveh Family Trust,

Defendants.

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

Submitted November 14, 2018** San Francisco, California

* 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). Before: THOMAS, Chief Judge, M. SMITH, Circuit Judge, and BUCKLO,*** District Judge.

Alireza Kaveh, JPA Investments, and Jocelyne Abrar (“Appellants”) appeal

the district court’s denial of their motion for reconsideration based on lack of

subject matter jurisdiction and its previous denial of their cross-motion for

summary judgment. Because the parties are familiar with the history of this case,

we need not recount it here. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

I

The district court had diversity subject matter jurisdiction over this case.

Appellants are citizens of Nevada and California. Wells Fargo, with its main

office in South Dakota, “is a citizen only of South Dakota” because a national bank

is a citizen “only of the state in which its main office is located.” Rouse v.

Wachovia Mortg., FSB, 747 F.3d 707, 715 (9th Cir. 2014); Vasquez v. Wells

Fargo Bank, 77 F. Supp. 3d 911, 924 n.3 (N.D. Cal. 2015) (“[T]he Ninth Circuit

has held that Wells Fargo Bank, N.A. is a citizen only of South Dakota for the

purposes of diversity jurisdiction.”). Because the amount in controversy exceeded

*** The Honorable Elaine E. Bucklo, United States District Judge for the Northern District of Illinois, sitting by designation. 2 $75,000, and all plaintiffs were diverse from all defendants, the court had subject

matter jurisdiction pursuant to 28 U.S.C. § 1332(a).

Appellants argue that complete diversity did not exist because Wells Fargo

erroneously claimed in another case that it was a citizen of California. But Wells

Fargo’s incorrect statements cannot impact the court’s determination of its

citizenship, which, under Ninth Circuit law, is categorically South Dakotan. Thus,

the district court did not abuse its discretion in denying Appellants’ motion for

reconsideration of its subject matter jurisdiction decision.

II

The district court properly granted partial summary judgment, a decision we

review de novo. White v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007).

Under Nevada Revised Statute § 40.455, judgment creditors must apply for a

deficiency judgment within six months of a foreclosure sale. Nev. Rev. Stat. §

40.455(1) (2017). The application need not be formal; it can consist of a filing

made within six months of a foreclosure sale so long as the filing states with

particularity the grounds for the judgment and sets forth the relief sought. Walters

v. Eighth Jud. Dist. Ct. ex rel. Cty. of Clark, 263 P.3d 231, 234 (Nev. 2011);

Mardian v. Michael & Wendy Greenberg Family Tr., 359 P.3d 109, 112 (Nev.

2015).

3 In Walters, a judgment creditor filed a counterclaim against a guarantor for

breach of guaranty and then, within six months of a foreclosure sale of secured

property, filed a motion for summary judgment on the breach of guaranty action

seeking the remaining amount of the unpaid balance post-foreclosure. Walters,

263 P.3d at 232–33. The court determined that the motion for summary judgment

met the requirements for a deficiency judgment application under § 40.455. Id. at

234.

Similarly, in this case, Wells Fargo filed a complaint prior to the foreclosure,

followed by a motion for summary judgment within the six month time period.

Though Appellants claim that the summary judgment motion “did not ask for the

relief of a deficiency judgment,” the motion plainly stated “[t]his is a post-

foreclosure deficiency motion,” and “the amount realized from the [foreclosure

sale] is substantially less than the [i]ndebtedness, leaving a deficiency owed by the

Guarantors to Wells Fargo.” It also included relevant interest rates and a

calculation of debt owed at the time of the foreclosure sale. Pursuant to Walters,

the district court properly found the partial summary judgment motion met the

requirements required for an application under § 40.455.

Appellants also assert that the summary judgment motion was fatally flawed

because “it did not ask the court to set a hearing at which it could determine the

4 fair market value of the secured property on the date of the sale.” But there is no

statutory requirement providing that a judgment creditor must request a hearing, or

any requirement stating when a request must be made. Instead, the governing

statute only states that a court “shall hold a hearing” before awarding a deficiency

judgment. Nev. Rev. Stat § 40.457(1) (2017). Because a request for a hearing was

not required, Wells Fargo’s partial summary judgment motion constituted a valid

application for a deficiency judgment under § 40.455, and the district court

properly entered summary judgment.

AFFIRMED.