NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OREO CORP., an Ohio corporation, as 

Successor-In-Interest to KeyBank National 

Association,

 Plaintiff - Appellee,

 v.

LAWRENCE J. WINNERMAN,

SANFORD B. WINNERMAN, and WW 

CENTENNIAL HILLS, LLC, a Delaware 

limited liability company, 

 Defendants - Appellants.

No. 14-15515

D.C. No. 2:10-cv-00352-PMPVCF

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, Senior District Judge, Presiding

Submitted March 14, 2016**

San Francisco, California

Before: FERNANDEZ, GOULD, and FRIEDLAND, Circuit Judges.

Lawrence and Sanford Winnerman, Guarantors on a defaulted real estate 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by 9th Cir. R. 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

MAR 17 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

loan, and WW Centennial Hills (collectively “Appellants”) appeal from the district 

court’s orders granting KeyBank National Association’s (KeyBank’s) motion to 

substitute OREO Corp. (OREO) as plaintiff, denying summary judgment to 

Appellants on OREO’s claim for a deficiency judgment, valuing the property in 

accordance with OREO’s expert’s testimony, and granting OREO post-judgment 

interest at 8.25% per annum. 

We affirm the district court’s grant of KeyBank’s motion to substitute, its 

denial of Appellants’ motion for summary judgment, and its determination of fair 

market value. We vacate the district court’s award of post-judgment interest.

Pursuant to Federal Rule of Civil Procedure 15(c),1“[i]n the Ninth Circuit, 

‘[a]n amendment adding a party plaintiff relates back to the date of the original 

pleading only when: 1) the original complaint gave the defendant adequate notice 

of the claims of the newly proposed plaintiff; 2) the relation back does not unfairly 

prejudice the defendant; and 3) there is an identity of interests between the original 

 

1

If the “limitations period derives from state law, Rule 15(c)(1)[(A)] requires [the 

court] to consider both federal and state law and employ whichever affords the 

‘more permissive’ relation back standard.” Butler v. Nat’l Cmty. Renaissance of 

Cal., 766 F.3d 1191, 1201 (9th Cir. 2014). Because we conclude that relation 

back is appropriate under the federal rules, whether it would also be permissible 

under a potentially more lenient Nevada rule need not be addressed.
3

and newly proposed plaintiff.’” Immigrant Assistance Project of the Los Angeles 

Cty. Fed’n of Labor (AFL-CIO) v. INS, 306 F.3d 842, 857 (9th Cir. 2002) (quoting 

Rosenbaum v. Syntex Corp. (In re Syntex Corp. Sec. Litig.), 95 F.3d 922, 935 (9th 

Cir. 1996)).2 

There is no question that the First Amended Complaint (FAC) gave 

Appellants “adequate notice of the claims of the newly proposed plaintiff.” 

Immigrant Assistance Project, 306 F.3d at 857 (quoting Rosenbaum, 95 F.3d at 

935)). The FAC and Second Amended Complaint (SAC) are identical, aside 

from the substitution of OREO as plaintiff. Appellants were thus fully on notice 

at the time of the FAC that a deficiency judgment claim on the Property had been 

leveled against them—the exact same claim alleged in the SAC. Appellants have 

not explained how relation back prejudices them in any way. Nor have 

Appellants argued that OREO and KeyBank did not share an identity of interests in 

obtaining a deficiency judgment, which they did. See id. at 858 (identity-ofinterest requirement is met when “[t]he circumstances giving rise to the claim 

 

2 Although Rule 15(c) rule speaks specifically only about changing defendants, the 

rule “applies by analogy to the substitution of plaintiffs.” Raynor Bros. v. Am. 

Cyanimid Co., 695 F.2d 382, 384 (9th Cir. 1982) (citing Fed. R. Civ. P. 15 

advisory committee’s note). 
4

remained the same [under the amended complaint] as under the original complaint” 

(alterations in original) (quoting Raynor Bros. v. Am. Cyanimid Co., 695 F.2d 382,

384 (9th Cir. 1982))). The district court, accordingly, did not abuse its discretion 

in allowing the SAC to relate back to the FAC. See Besig v. Dolphin Boating & 

Swimming Club, 683 F.2d 1271, 1278-79 (9th Cir. 1982) (“An amendment 

changing plaintiffs may relate back when the relief sought in the amended 

complaint is identical to that demanded originally.”). 

The district court’s fair market value determination was not clearly 

erroneous. Under Nevada law, “[f]air market value is generally defined as the 

price which a purchaser, willing but not obliged to buy, would pay an owner 

willing but not obliged to sell, taking into consideration all the uses to which the 

property is adapted and might in reason be applied.” Unruh v. Streight, 615 P.2d 

247, 249 (Nev. 1980) (per curiam). The court can “properly consider all relevant 

evidence in determining the value of the property.” Id. 

Although it is undisputed that OREO’s expert used the definition of fair 

market value provided by the Financial Institutions Reform, Recovery, and 
5

Enforcement Act (FIRREA)

3

rather than the Unruh definition, Appellants fail to 

establish that an appraisal using the FIRREA definition is inconsistent with Unruh. 

Appellants first contend that the FIRREA definition requiring the buyer and seller 

to be “motivated,” 12 C.F.R. Part 34.42(g), is contrary to Unruh’s assumption that 

buyers and sellers be “willing but not obliged” to buy or sell, Unruh, 615 P.2d at 

249. But being “motivated” does not mean being “obliged.” Compare

Motivated, Oxford English Dictionary, http://www.oed.com/view/Entry/244070 (

“enthusiastic, stimulated”), with Obliged, Oxford English Dictionary, 

http://www.oed.com/view/Entry/129698 ( “compelled, necessitated”).

Appellants next cite to their expert appraiser’s testimony that valuation 

under FIRREA often assumes a specific purpose for the land in question because 

banks will make a loan only when they know the property will be developed in a 

certain manner. The market value definition under Unruh, he testified, is broader 

because that definition takes into consideration all the uses the property may be 

 

3 FIRREA implementing regulations define “market value” as “the most probable 

price which a property should bring in a competitive and open market under all 

conditions requisite to a fair sale, the buyer and seller each acting prudently and 

knowledgeably, and assuming the price is not affected by undue stimulus. 

Implicit in this definition [are] . . . conditions whereby: (1) Buyer and seller are 

typically motivated.” 12 C.F.R. § 34.42(g).
6

“adaptable to.” Even accepting this as true, Appellants point to no evidence 

showing that the potential uses their expert contemplated were any more valuable 

than the uses OREO’s expert contemplated. In fact, both experts stated that the 

best use for the property was to hold it for future commercial development. 

 Appellants also argue that because OREO’s expert’s appraisal of the Property 

was as of February 18, 2010, it cannot support a valuation of the Property as of the 

March 31, 2010 trustee’s sale. The district court, however, was free to consider 

that pre-sale valuation, in conjunction with and in light of all the available 

evidence, to arrive at “the most viable” valuation as of the date of the sale. See

Unruh, 615 P.2d at 249 (“The district court could properly consider all relevant 

evidence in determining the value of the property.”). 

Finally, we agree with Appellants that the district court erred in awarding 

post-judgment interest at the contractual rate of 8.25% (the “Default Rate”) instead 

of at the statutory rate mandated by 28 U.S.C. § 1961. 

In diversity actions like this one, “state law determines the rate of 

prejudgment interest, and postjudgment interest is governed by federal law.” 

Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1107-08 (9th Cir. 1998) 

(quoting Am. Tel. & Tel. Co. v. United Comput. Sys., 98 F.3d 1206, 1209 (9th Cir. 
7

1996)). Section 1961 is “mandatory in cases awarding post judgment interest.” 

Van Asdale v. Int’l Game Tech., 763 F.3d 1089, 1092 (9th Cir. 2014) (quoting 

Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir. 1986)). “An exception to § 1961 

exists when the parties contractually agree to waive its application.” Fid. Fed. 

Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1023 (9th Cir. 2004). 

In order to contract around the otherwise mandatory provisions of § 1961, 

there must be a “specific agreement” “on this specific issue.” Durga Ma, 387 

F.3d at 1023. Here, there was no “specific agreement” as to the specific issue of 

post-judgment interest sufficient to manifest an intent to override § 1961. Unlike 

in Citicorp, where the parties expressly agreed that the contractual rate would 

apply “after judgment until collection,” Citicorp, 155 F.3d at 1108, none of the

contract provisions cited by OREO even allude to post-judgment interest. The 

district court therefore abused its discretion in applying the Default Rate instead of 

the statutory rate. 

CONCLUSION

The grant of the motion for leave to substitute plaintiff and denial of the 

motion for summary judgment are affirmed. The district court’s fair market value 

determination is affirmed. The district court’s award of post-judgment interest is 
8

vacated. On remand, the district court shall recalculate the interest and amend the 

judgment accordingly. 

The parties shall bear their own costs.

AFFIRMED IN PART and VACATED AND REMANDED IN PART.