OCT 3 0 2014 

CLEW(r6;i!-V4gaR 

By 

DLPAP( 

130 Nev., Advance Opinion 68 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, AS RECEIVER FOR 

COMMUNITY BANK OF NEVADA, 

Appellant, 

vs. 

JAMES M. RHODES, 

Respondent. 

No. 59309 

FILED 

Appeal from a district court order dismissing a deficiency 

judgment action as time barred. Eighth Judicial District Court, Clark 

County; Jessie Elizabeth Walsh, Judge. 

Affirmed in part, reversed in part, and remanded. 

Smith Larsen & Wixom and Michael B. Wixom and Katie M. Weber, Las 

Vegas, 

for Appellants. 

Santoro Whitmire and Nicholas J. Santoro and Jason D. Smith, Las 

Vegas, 

for Respondent. 

BEFORE THE COURT EN BANC. 

OPINION 

By the Court, SAITTA, J.: 

Under the Financial Institutions Reform, Recovery, and 

Enforcement Act of 1989 (FIRREA), appellant Federal Deposit Insurance 

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Corporation (the FDIC) acts as a "conservator or receiver" for failed 

financial institutions. 12 U.S.C. § 1821(d)(2)(A) (2012). FIRREA extends 

the time period for the FDIC, in its capacity as the failed institution's 

conservator or receiver, to bring a contract claim that has otherwise been 

barred by a state statutory time limitation: 

[T]he applicable statute of limitations with regard 

to any action brought by [the FDIC] as conservator 

or receiver shall be- 

(i) in the case of any contract claim, 

the longer of— 

(I) the 6-year period beginning 

on the date the claim accrues; or 

(II) the period applicable under 

State law. 

12 U.S.C. § 1821(d)(14)(A) (2012) (hereinafter the FDIC extender statute). 

This statute has been applied to govern the timeliness of the deficiency 

judgment suits that are brought by the FDIC. See, e.g., Cadle Co. v. 1007 

Joint Venture, 82 F.3d 102, 104 (5th Cir. 1996) (in the context of a 

deficiency judgment suit, indicating that the FDIC extender statute 

governs the timeliness of "a suit by the FDIC to collect on a note"); Twenty 

First Century Recovery, Ltd. v. Mase, 665 N.E.2d 573, 576-78 (Ill App. Ct. 

1996) (concluding that the FDIC extender statute governed the timeliness 

of an action for a deficiency judgment); Trunkhill Capital, Inc. v. Jansma, 

905 S.W.2d 464, 465-68 (Tex. App. 1995) (concluding that the FDIC 

extender statute governed an action for a deficiency judgment). However, 

Nevada provides for a shorter six-month time limitation for deficiency 

judgment actions under NRS 40.455(1), which states that 

upon application of the judgment creditor or the 

beneficiary of the deed of trust within 6 months 

after the date of the foreclosure sale or the 

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trustee's sale held pursuant to NRS 107.080, 

respectively, and after the required hearing, the 

court shall award a deficiency judgment to the 

judgment creditor or the beneficiary of the deed of 

trust. . . . 

Here, the FDIC filed its claim for a deficiency judgment after NRS 

40.455(1)'s six-month deadline but within the FDIC extender statute's sixyear time limitation. The district court dismissed the FDIC's deficiency 

judgment claim as untimely. It concluded that the FDIC needed but failed 

to meet NRS 40.455(1)'s deadline regardless of the FDIC extender statute. 

In this matter, we address whether the FDIC extender statute 

preempts NRS 40.455(1)'s six-month time limitation. We conclude that it 

does. The plain meaning of the FDIC extender statute clearly and 

manifestly mandates that its six-year time limitation governs the 

timeliness of the FDIC's deficiency-judgment action if that time limitation 

is longer than "the period applicable under State law." 12 U.S.C. § 

1821(d)(14)(A) (2012). Thus, the FDIC extender statute expressly 

preempts NRS 40.455(1)—the period applicable under Nevada law—

regardless of whether the state statute is a statute of limitations or repose. 

Therefore, because the FDIC filed its deficiency judgment action within 

the FDIC extender statute's six-year time limitation, the district court 

erred in dismissing the FDIC's deficiency-judgment action as untimely. 

FACTS AND PROCEDURAL HISTORY 

In 2005, under a promissory note secured by a deed of trust, 

Community Bank of Nevada loaned $2,625,000 to Tropicana Durango 

Ltd., of which respondent James M. Rhodes was a general partner. The 

deed of trust encumbered a piece of Tropicana Durango's real property for 

the benefit of Community Bank. Additionally, Rhodes executed a 

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guarantee agreement, under which he guaranteed the repayment of 

Tropicana Durango's debt to Community Bank. 

In August 2009, the Nevada Financial Institutions Division 

closed and took possession of Community Bank and appointed the FDIC 

as "receiver/liquidator" for Community Bank. At this time, Tropicana 

Durango was in default on its 2005 loan. In November 2009, the FDIC 

recorded a "Notice of Default and Election to Sell," and a trustee's sale was 

held for the real property that was secured by the deed of trust. The FDIC 

purchased the real property with a credit bid of $750,000. 

In February 2011, after six months but within six years of the 

trustee's sale, the FDIC filed a suit for a deficiency judgment against 

Rhodes to recover the money still owed on the 2005 loan after the trustee's 

sale. In so doing, it contended that its deficiency judgment action was 

timely because the FDIC extender statute permitted it to bring the action 

within six years of the date on which it could first bring its deficiency 

judgment claim, which was the date of the trustee's sale. See Sandpointe 

Apartments, L.L.C. v. Eighth Judicial Dist. Court, 129 Nev. , 313 

P.3d 849, 856 (2013) ("The trustee's sale marks the first point in time that 

an action for deficiency can be maintained . . . ."). 

Rhodes filed a motion to dismiss, asserting that NRS 40.455(1) 

was a statute of repose and that its six-month time limitation for 

deficiency judgments, which started from the date of the trustee's sale, 

barred the FDIC's complaint that was filed beyond that time period. In so 

asserting, Rhodes primarily relied on Resolution Trust Corp. v. Olson, 768 

F. Supp. 283, 285-86 (D. Ariz. 1991), which provided that a statute like the 

FDIC extender statute could not elongate the time to file an action that 

was otherwise barred by a state statute of repose. 

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The district court granted Rhodes' motion and dismissed the 

FDIC's complaint in its entirety. In so doing, it concluded that "the 6 

month period after the date of the foreclosure sale or the trustee's sale to 

bring an application for a deficiency judgment under NRS 40.455 is a 

substantive statute of repose" with which the FDIC needed but failed to 

comply. This appeal followed. 

DISCUSSION 

The FDIC argues that the district court erred in dismissing its 

claim for a deficiency judgment, contending that the FDIC extender 

statute preempts NRS 40.455(1), regardless of whether the latter is a 

statute of limitations or repose. In addition, the FDIC specifically contests 

Rhodes' reliance on Olson for his motion to dismiss the deficiency 

judgment claim, asserting that the Olson court erroneously interpreted 

other authorities for the conclusion that federal statutes cannot control 

over state statutes of repose. 

Rhodes responds that the district court did not err in 

determining that NRS 40.455(1) was a statute of repose that barred the 

FDIC's complaint. As to the FDIC's preemption arguments, Rhodes 

argues that the FDIC waived these arguments because it did not assert 

them before the district court. In the alternative, he contends that if the 

preemption issue was not waived, NRS 40.455(1) is a statute of repose 

that is not preempted by the FDIC extender statute because the latter's 

statutory language only mentions a statute of limitations and not a 

statute of repose. Regarding Olson, Rhodes asserts that the Olson court 

correctly concluded that a federal agency must comply with state statutes 

that create substantive conditions for an action under state law. 

Accordingly, Rhodes maintains that MRS 40.455(1)'s six-month time 

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limitation is a condition precedent for a deficiency judgment action and, as 

a result, it is a statute of repose that imposes a substantive time limitation 

that the FDIC failed to meet. 

The parties raise issues that concern the preemption doctrine 

and the meaning of a federal statute and a state statute. Thus, de novo 

review governs our analysis and resolution of the issues that are before us. 

See Nanopierce Techs., Inc. v. Depository Trust & Clearing Corp., 123 Nev. 

362, 370, 168 P.3d 73, 79 (2007) (providing that whether a federal statute 

preempts a state statute is a question of law that is reviewed de novo); 

Washoe Med. Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1302, 148 

P.3d 790, 792 (2006) (providing that de novo review applies to statutory 

interpretation issues). 

The parties' arguments inherently concern preemption 

In arguing that the issue of preemption was waived, Rhodes 

correctly notes that we generally do not address arguments that are made 

for the first time on appeal and which were not asserted before the district 

court. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 

(1981). But we disagree with Rhodes' contention that the preemption 

issue was not raised below. 

As they did before the district court, the parties on appeal 

dispute whether the timeliness of the FDIC's deficiency judgment action is 

governed by NRS 40.455(1) or the FDIC extender statute. The issue of 

whether an action is governed by a state statutory time limitation or 

federal statutory time limitation is inherently a matter that concerns the 

preemption doctrine. See, e.g., Waldburger v. CTS Corp., 723 F.3d 434, 

438, 442-44 (4th Cir. 2013) (employing the preemption doctrine to resolve 

a conflict between a federal statutory time limitation and a state statute of 

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repose), rev'd on other grounds, 573 U.S. , 134 S. Ct. 2175 (2014); In re 

Countrywide Fin. Corp. Mortg.-Backed Sec. Litig., 966 F. Supp. 2d 1018, 

1024-30 (C.D. Cal. 2013) (doing the same with respect to the FDIC 

extender statute and a state statute of repose). Although neither party 

explicitly invoked the preemption doctrine before the district court, their 

arguments concerned a potential conflict between a federal statute and 

state statute and thus implicated the doctrine. Moreover, in contesting 

Rhodes' motion to dismiss its complaint, the FDIC cited to two authorities 

that concerned the preemption doctrine for its contention that the FDIC 

extender statute governed its deficiency judgment action: 

Stonehedge I Fasa-Texas JDC v. Miller, No. 96-10037, 1997 WL 119899 

(5th Cir. March 10, 1997), and WRH Mortgage, Inc. v. Butler, 684 So. 2d 

325 (Fla. Dist. Ct. App. 1996). 

Although the FDIC more explicitly raises the preemption 

doctrine on appeal than it did before the district court, its arguments on 

appeal are primarily the same as those that it asserted in contesting 

Rhodes' motion. Before the district court, it contended that the FDIC 

extender statute displaced NRS 40.455(1). On appeal it argues the same, 

but it does so by explicitly raising the preemption doctrine. 

Whereas the district court's order did not mention the 

preemption doctrine, the substance therein concerns the doctrine. In its 

order, the district court concluded that NRS 40.455(1) was a statute of 

repose that barred the FDIC's action. In determining that the FDIC 

extender statute did not override NRS 40.455(1), the district court implied 

that the former did not preempt the latter. 

Therefore, we conclude that the arguments before the district 

court and the district court's order innately involved the preemption 

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doctrine. And thus the issue of whether the FDIC extender statute 

preempts NRS 40A55(1) is properly before us. 

The FDIC extender statute preempts NRS 40.455(1) 

The preemption doctrine is rooted in the Supremacy Clause of 

the United States Constitution, which states: "[T]he Laws of the United 

States. . . shall be the supreme Law of the Land;. . . any Thing in the 

Constitution or Laws of any State to the Contrary notwithstanding." U.S. 

Const. art. VI. Whether a federal law preempts a conflicting state law is a 

matter of congressional intent. Nanopierce, 123 Nev. at 370, 168 P.3d at 

79. Because there is a strong presumption that federal law does not 

supersede state law in areas that states generally regulate, the intent to 

preempt state law must be "clear and manifest." Id. at 370-71, 168 P.3d 

at 79 (quoting Bates v. Dow Agrosciences L.L.C., 544 U.S. 431, 449 (2005)). 

Of the multiple types of preemption, express preemption is relevant to this 

appeal Express preemption occurs when Congress explicitly conveys in 

its statutory language the intent to preempt state law. Id. at 371, 168 

P.3d at 79. 

Here, the FDIC extender statute expressly sets out "the 

applicable statute of limitations" for "any action brought by" the FDIC. 12 

U.S.C. § 1821(d)(14)(A) (2012). In using the term "shall" to mandate that 

the "applicable statute of limitations . . . shall be. . . the longer of' six 

years after the FDIC's claim accrues or "the period applicable under State 

law," Congress barred the possibility that some other time limitation 

would apply to the FDIC's claim. See id. 

In contending that the FDIC extender statute does not 

expressly preempt state statutes of repose, Rhodes emphasizes that the 

FDIC extender statute includes the phrase "statute of limitations" and 

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omits the phrase "statute of repose. The distinction between these two 

terms is often overlooked. A statute of limitations prohibits a suit after a 

period of time that follows the accrual of the cause of action. Allstate Ins. 

Co. v. Furgerson, 104 Nev. 772, 775 n.2, 766 P.2d 904, 906 n.2(1988). 

Moreover, a statute of limitations can be equitably tolled. Copeland v. 

Desert Inn Hotel, 99 Nev. 823, 826, 673 P.2d 490, 492 (1983) (identifying 

equitable tolling as an indicia of a statute of limitations). In contrast, a 

statute of repose bars a cause of action after a specified period of time 

regardless of when the cause of action was discovered or a recoverable 

injury occurred. Allstate Ins. Co., 104 Nev. at 775 n.2, 766 P.2d at 906 n.2; 

Libby v. Eighth Judicial Dist. Court, 130 Nev. , n.1, 325 P.3d 1276, 

1280 n.1 (2014). It conditions the cause of action on filing a suit within 

the statutory time period and "defines the right involved in terms of the 

time allowed to bring suit." P. Stolz Family P'ship L.P. v. Daum, 355 F.3d 

92, 102 (2d Cir. 2004). Such a statute seeks to give a defendant peace of 

mind by barring delayed litigation, so as to prevent unfair surprises that 

result from the revival of claims that have remained dormant for a period 

during which the evidence vanished and memories faded. See Underwood 

Cotton Co. v. Hyundai Merch. Marine (Am.), Inc., 288 F.3d 405, 408-09 

(9th Cir. 2002) (providing that statutes of repose are concerned with a 

defendant's peace of mind); Joslyn v. Chang, 837 N.E.2d 1107, 1112 (Mass. 

2005) (noting that statutes of repose prevent stale claims from springing 

up and surprising parties when the evidence has been lost). 

Emphasizing the distinction between statutes of limitations 

and repose, Rhodes asserts that the FDIC extender statute's term "statute 

of limitations" conveys that the federal statute only contemplates the 

displacement of state statutes of limitations and not repose. We disagree 

9 
and find this reading of the FDIC extender statute to be unreasonable. 

Rhodes' reading of the FDIC extender statute appears to overlook that the 

statute's phrase "statute of limitations" expressly identifies the time 

limitation set by the FDIC extender statute itself; the phrase does not 

refer to the time limitations in other state statutes that the FDIC extender 

statute displaces. In identifying the state time limitations that are 

displaced by its six-year time limitation, the FDIC extender statute states 

that its six-year time limitation controls over the shorter "period 

applicable under State law." 12 U.S.C. § 1821(d)(14)(A) (2012) (emphasis 

added). Therefore, regardless of whether the "period applicable under 

State law" is a statute of limitations or repose, the FDIC extender 

statute's language expresses the intent to have the six-year time 

limitation preempt all other shorter state law time limitations, including 

NRS 40.455(1). See 12 U.S.C. § 1821(d)(14)(A) (2012). 

As we deliberated on this appeal, the United States Supreme 

Court issued CTS Corp. v. Waldburger, 573 U.S. , 134 S. Ct. 2175 

(2014), wherein it concluded that a federal statute that is similar, but not 

identical, to the FDIC extender statute does not preempt state statutes of 

repose. Id. at , 134 S. Ct. at 2180-89. In making its determinations, 

the United States Supreme Court relied on statutory language that is not 

present in the FDIC extender statute. See id. The federal statute at issue 

in CTS Corp., 42 U.S.C. § 9658, provides a "federally required 

commencement date' for the accrual of state law environmental tort 

claims. Id. at , 134 S. Ct. at 2184 (quoting 42 U.S.C. § 9658(a)(1) 

(2012)). In particular, 42 U.S.C. § 9658 provides that the federally 

required commencement date applies "if the applicable limitations period 

for such action (as specified in the State statute of limitations or under 

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common law) provides a commencement date which is earlier than the 

federally required commencement date." 42 U.S.C. § 9658(a)(1) (2012). 

Additionally, the federal statute separately defines the taint "applicable 

limitations period" as "the period specified in a statute of limitations." 42 

U.S.C. § 9658(b)(2) (2012). 

In CTS Corp., the United States Supreme Court reasoned that 

it would be "awkward" for Congress to use the phrase "applicable 

limitations period," which conveys the preempted state time period in the 

singular, to preempt both statutes of limitations and repose, and in so 

reasoning it concluded that "the context" of 42 U.S.C. § 9658 reveals 

Congress's "intent not to cover statutes of repose." Id. at , 134 S. Ct. at 

2186-87. That context was partially comprised of a congressional study 

group report—which preceded the federal statute and which was specific 

to the subject matter that the federal statute covered—that acknowledged 

the distinction between statutes of limitations and repose. Id. at , 134 

S. Ct. at 2180-81, 2186. Additionally, the United States Supreme Court 

emphasized that the phrase "applicable limitations period" was statutorily 

defined in a way that concerned state statutes of limitations and that a 

statutory provision that equitably tolled the federally required 

commencement date indicated that Congress only intended to preempt 

state statutes of limitations. Id. at , 134 S. Ct. at 2187-88. 

CTS Corp.'s analysis does not dissuade us from concluding 

that the FDIC extender statute preempts both statutes of limitations and 

repose. The FDIC extender statute is different than the federal statute 

that was evaluated in CTS Corp. Although the FDIC extender statute 

appears near two tolling provisions, 12 U.S.C. § 1821(d)(5)(F) and 12 

U.S.C. § 1821(d)(8)(E), these tolling provisions are different from the 

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tolling provision that was considered in CTS Corp. The tolling provision 

in CTS Corp. specifically defined and delayed the "federally required 

commencement date," as that phrase appears in 42 U.S.C. § 9658, for 

certain state law actions that have earlier commencement dates under the 

state's applicable limitations period. 42 U.S.C. § 9658(a)(1), (b)(4)(B) 

(2012); CTS Corp., 573 U.S. at , 134 S. Ct. at 2184. But 12 U.S.C. § 

1821(d)(5)(F) and 12 U.S.C. § 1821(d)(8)(E) toll the "applicable statute of 

limitations" in the context of an administrative claims process with 

respect to the action of a claimant who files a "claim with the receiver." 

Thus, these tolling provisions are unlike the tolling language in CTS Corp. 

that expressly applied to and defined language in the federal statute that 

displaced a state statute of limitations. Thus, 12 U.S.C. § 1821(d)(5)(F) 

and 12 U.S.C. § 1821(d)(8)(E) do not indicate what Congress intended to 

preempt with the FDIC extender statute. 

Moreover, the FDIC extender statute uses the broad phrase 

"period applicable under State law" to identify what is preempted. 12 

U.S.C. § 1821(d)(14)(A) (2012). Unlike the similar statutory phrase in 

CTS Corp. that was defined by language that indicated Congress's intent 

to only preempt statutes of limitation, the FDIC extender statute's phrase 

"period applicable under State law" is undefined. See id. Although the 

analysis in CTS Corp. identified that the singular form of "applicable 

limitations period" was an "awkward way" to preempt statutes of 

limitations in the context of a federal statute that defined the "applicable 

limitations period" with language indicating the intent to preempt only a 

statute of limitations, 573 U.S. at , 134 S. Ct. at 2186-87, we conclude 

that in the context of the FDIC extender statute, the plain meaning of the 

broad and undefined phrase "period applicable under State law" conveys 

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the intent to preempt any applicable state time limitation, including state 

statutes of repose. See In re Resort at Summerlin Litig., 122 Nev. 177, 

182, 127 P.3d 1076, 1079 (2006) (providing that an undefined statutory 

phrase is construed based on its plain meaning); Am. Fedin of Gov't Pimps., 

AFL-CIO v. Glickman, 215 F.3d 7, 10 (D.C. Cir. 2000) (indicating that an 

undefined statutory term is not ipso facto ambiguous and that such terms 

are to be given their plain meaning); see also 1U.S.C. § 1 (2012) ("[U]nless 

the context indicates otherwise LI words importing the singular include and 

apply to several., . things . . . ." (emphasis added)). 

Yet on the premise that NRS 40.455(1) is a statute of repose, 

Rhodes contends that a federal statute cannot preempt a state statute of 

repose because federal agencies must comply with state statutes of repose 

that establish substantive conditions for a cause of action under state law. 

In so contending, he directs us to at least two authorities that contain 

arguably similar conclusions: (1) Resolution Trust Corp. v. Olson, 768 F. 

Supp. 283 (D. Ariz. 1991), and (2) In re Countrywide Financial Corp. 

Mortgage-Backed Securities Litigation, 966 F. Supp. 2d 1018 (C.D. Cal. 

2013). 

The Countrywide court perceived a conceptual difficulty in 

par mitting a federal statute to preempt a state statute of repose, in that a 

statute of repose generally "defines, limits, and even terminates the right" 

that is to be enforced. 966 F. Supp. 2d at 1029. According to the 

Countrywide court, when a state statute of repose lapses for a claim, the 

claim ceases to exist and the FDIC extender statute cannot revive it. Id. 

at 1029-30 & n.8. The Olson court reached the same result pursuant to a 

slightly different analysis. Olson, 768 F. Supp. at 285-86. The Olson court 

characterized a state statute of repose as being substantive in nature and 

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concluded that a federal agency must satisfy a state statute of repose's 

time limitation because it must satisfy state statutes that are substantive, 

rather than procedural, in nature. Id. Here, the district court seemed to 

be persuaded by Rhodes' reliance on Olson when it concluded that NRS 

40.455(1) was a "substantive statute of repose" with which the FDIC 

needed to comply regardless of the FDIC extender statute. 

But unlike the district court, we are not persuaded by the 

reasoning in Countrywide or Olson. Although we find Countrywide's 

analysis to be more persuasive than that in Olson, in that the former 

offers a more cogent analysis for its conclusions, neither case convinces us 

that a federal statute cannot preempt a state statute of repose. We do not 

agree with Olson's conclusion that the determination of whether a federal 

statute controls over a state statute is based on whether the latter is 

"procedural" or "substantive." See Olson, 768 F. Supp. at 285-86; see also 

Countrywide, 966 F. Supp. 2d at 1030 n.8 (rejecting Olson's analysis that 

focused on whether a state statute was procedural or substantive); Butler, 

684 So. 2d at 328 (rejecting Olson). And in light of other authorities 

wherein federal statutes preempted state statutes of repose, we hesitate to 

adopt Countrywide's conclusion—which is primarily based on reasoning 

absent legal authority that directly addresses the issue—that a statute of 

repose cannot be preempted. See Countrywide, 966 F. Supp. 2d at 1029- 

30; see also Chatham Steel Corp. v. Brown, 858 F. Supp. 1130, 1150-52 

(N.D. Fla. 1994) (concluding that a federal statute preempts state statutes 

of repose); A.S.L, Inc. v. Sanders, 835 F. Supp. 1349, 1355, 1358 (D. Kan. 

1993) (applying the preemption doctrine to conclude that a federal statute 

preempted a state statute of repose while rejecting the argument that a 

statute of repose is immunized from being preempted because it is 

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substantive in nature); Butler, 684 So. 2d at 327-28 (concluding that the 

FDIC extender statute preempted a state statutory time limitation, 

regardless of whether the latter was a statute of limitations or repose); 

Tow v. Pagano, 312 S.W.3d 751, 761 (Tex. App. 2009) (concluding that a 

federal statute can preempt a state statute of repose, albeit with respect to 

a federal bankruptcy statute). 

Accordingly, we need not characterize NRS 40.455(1) as a 

statute of limitations or repose. NRS 40.455(1) is a "period applicable 

under State law" that is shorter than the FDIC extender statute's six-year 

time limitation. 12 U.S.C. § 1821(d)(14)(A) (2012). Thus, we conclude that 

the FDIC extender statute's six-year time limitation expressly preempts 

NRS 40.455(1). 

CONCLUSION 

In light of the above, we conclude that the district court erred 

in dismissing the FDIC's action for a deficiency judgment when it 

determined that NRS 40.455(1) was a statute of repose that barred the 

action that the FDIC filed after NRS 40.455(1)'s six-month deadline but 

before the expiration of the FDIC extender statute's six-year time 

limitation. A plain reading of the FDIC extender statute indicates that its 

six-year time limitation expressly preempts any shorter state statutory 

time limitation, including the limitation provided in NRS 40.455(1), 

regardless of whether the state statute is a statute of limitations or repose. 

Accordingly, we reverse the portion of the district court's order that 

dismissed the FDIC's deficiency judgment claim as time barred and 

remand this matter to the district court for further proceedings that are 

consistent with this opinion. As the FDIC failed to meaningfully dispute 

the determinations in the order beyond the district court's conclusion 

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J. 

about the timeliness of its suit for a deficiency judgment, we affirm and do 

not address those determinations.' 

Saitta 

We concur: 

Pickering 

..e.e.42Z1 

Hardesty 

1 (4 , J. 

Douglas 

"In addition to raising the preemption issue, the FDIC asserts that 

the district court erred in dismissing its contract-based claims beyond its 

deficiency judgment action. But it makes this assertion without 

meaningful analysis or a citation to salient authority. In the absence of a 

cogent argument about the dismissal of the contract-based claims, we do 

not address that issue. See Edwards v. Emperor's Garden Rest., 122 Nev. 

317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (providing that we need not 

address an issue that is not cogently argued). Moreover, we have 

considered the remaining contentions on appeal and conclude that they 

lack merit. 

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GIBBONS, C.J., with whom PARRAGUIRRE and CHERRY, JJ., agree, 

dissenting: 

The FDIC failed to preserve its preemption argument 

I would affirm the judgment of the district court. The FDIC 

failed to preserve its preemption argument by failing to raise the 

argument before the district court. The majority concedes that the 

preemption doctrine argument was not explicitly raised before the district 

court. This court does not address arguments that are made for the first 

time on appeal and which are not asserted before the district court. Old 

Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). 

The FDIC extender statute does not preempt state statutes of repose 

In addition, NRS 40.455(1) is a statute of repose that bars the 

FDIC's action. As the majority acknowledges, statutes of repose are 

distinct from statutes of limitation. Statutes of repose bar a cause of 

action after a specified period of time regardless of when the cause of 

action was discovered or a recoverable injury occurred. Allstate Ins. Co. v. 

Furgerson, 104 Nev. 772, 775 n.2, 766 P.2d 904, 906 n.2 (1988). The 

majority concludes that the FDIC extender statute applies to both statutes 

of limitation and statutes of repose. I disagree. 

First, when addressing what the applicable statute of 

limitations should be, the FDIC extender statute refers to "the period 

applicable under State law." 12 U.S.C. § 1821(d)(14)(A)(i)(H) (2012). As 

the United States Supreme Court concluded, "[using 'period' in a singular 

form] would be an awkward way to mandate the pre-emption of two 

different time periods with two different purposes." CTS Corp. v. 

Waldburger, 573 U.S. „ 134 S. Ct. 2175, 2187 (2014) (addressing 

whether a federal statute preempts statutes of repose applicable to statelaw tort actions in certain circumstances). 

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Second, the FDIC extender statute contains a provision that 

provides for tolling of the statute of limitations. 12 U.S.C. § 

1821(d)(5)(F)(i) (this section, entitled "Statute of limitation tolled," states 

that "[for purposes of any applicable statute of limitations, the filing of a 

claim with the receiver shall constitute a commencement of an action") 

This "suggests that the statute's reach is limited to statutes of limitations, 

which traditionally have been subject to tolling." See CTS Corp., 573 U.S. 

at , 134 S. Ct. at 2188. 

Lastly, the FDIC extender statute extends the time period for 

"any action" to be brought. Black's Law Dictionary defines "action" as a 

"civil or criminal judicial proceeding." Black's Law Dictionary 31 (8th ed. 

2004). Similar to the United States Supreme Court's analysis of "civil 

action" in CTS Corp., the use of the term "action" presupposes that a cause 

of action exists. CTS Corp., 573 U.S. at , 134 S. Ct. at 2187. While "in 

a literal sense a statute of repose limits the time during which a suit 'may 

be brought' because it provides a point after which a suit cannot be 

brought," statutes of repose are not related to the existence of any cause of 

action. Id. ("A statute of repose. . . may preclude an alleged tortfeasor's 

liability before a plaintiff is entitled to sue, before an actionable harm ever 

occurs.") Thus, the FDIC extender statute is best interpreted to reference 

only statutes of limitations, which generally begins to run after a cause of 

action accrues. Id. 

The majority concludes that the federal statute at issue in 

CTS Corp. is sufficiently different from the FDIC extender statute and 

that a departure from the Court's holding in that case is warranted. 

However, both federal statutes use the term "period" in a singular form 

when addressing which limitation period is covered; both federal statutes 

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provide for tolling of statutes of limitation; and both federal statutes 

address the time limit for when an "action" may be brought. Moreover, 

"when the text of a pre-emption clause is susceptible of more than one 

plausible reading, courts ordinarily accept the reading that disfavors preemption." CTS Corp., 573 U.S. at , 134 S. Ct. at 2188 (quotations 

omitted). As such, I agree with the conclusion of the federal district court 

in the case of In re Countrywide Financial Corp. Mortgage-Backed 

Securities Litigation, 966 F. Supp. 2d 1018, 1024-30 (C.D. Cal. 2013), that 

the federal extender statute does not preempt state statutes of repose. As 

a consequence, the district court correctly concluded that the deficiency 

action initiated by the FDIC was time-barred. 

We concur: 

Parraguirre Cals j. 

Ck J. 

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