* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

In Re: LAKE AT LAS VEGAS JOINT VENTURE, LLC, Debtor,
LID ACQUISITION, LLC, Appellant,

v. LAKE AT LAS VEGAS JOINT VENTURE, LLC; TRANSCONTINENTAL CORPORATION; OFFICIAL COMMITTEE OF UNSECURED CREDITORS; LLV-1, LLC; CREDIT SUISSE, CAYMAN ISLANDS BRANCH, Appellees. No. 11-15403 D.C. No. 2:10-cv-01037-JCM-RJJ

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding 

# FILED

OCT 24 2012 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 Argued and Submitted September 12, 2012 Las Vegas, Nevada Before: RAWLINSON, BYBEE, and IKUTA, Circuit Judges.

The Security Agreement between Lake at Las Vegas Joint Venture (LLVJV) and Wells Fargo granted the bank a security interest, not an absolute assignment, in payments “due or to become due under or in connection with” the T-12 Acquisition Agreement, because the agreem ent: (1) expressly contemplated that, once signed, it created a security interest, see, e.g. , “T-12 Security Agreement” at ¶ 2; (2) gave Wells Fargo the right to demand the amount of any deficiency between the proceeds from the sale of the co llateral and the amount of the loans, see id. at ¶ 15(e); and (3) required Wells Fargo to pa y any surplus received from the sale of the collateral to the debtors or at the debtors’ direction, see id. See Dewhirst v. Citibank (In re Contractors Equip. Supply Co.) , 861 F.2d 241, 245 (9th Cir. 1988) (citing In re Evergreen Valley Resort, Inc. , 23 B.R. 659, 661–62 (Bankr. D. Me. 1982)) (identifying factors relevant to dete rmining whether an agreement creates a security interest or an absolute assignm ent). For these same reasons, the Security Agreement between LLV-1, LLC and Wells Fargo granted the bank a security interest, not an absolute assignment, in the T-16 Acquisition Agreement and3 payments “due or to become due under orin connection with” that agreement. Nothing in the Notices and Irrevocable Direc tions to Pay, attached to both security agreements, changes this analysis. Because the T-12 Security Agreement ga ve LID Acquisition (Wells Fargo’s assignee) a security interest only in payments from the T-12 Acquisition Agreement, and LLVJV received no payments in connection with the T-12 Acquisition Agreement before its bankruptcy filing, the T-12 Security Agreement does not give LID Acquisition a security interest in any post-petition payments made in connection with the T-12 Acquisition Agreement. See 11 U.S.C. § 552(a). Even if LLVJV had received a payment in connection with the T-12 Acquisition Agreement before filing bankruptcy, the T-12 Security Agreement would not give LID Acquisition a security interest in any post-petition payments under the T-12 Acquisition Agreement because those post- petition payments are not “proceeds” of pre-petition payments. See 11 U.S.C. § 552(b)(1); see also Philip Morris Capital Corp. v. Bering Trader, Inc. (In re Bering Trader, Inc.) , 944 F.2d 500, 501 (9th Cir. 1991)

. Article 9 of the Uniform Commercial Code applies to LID Acquisition’s security interest in the T-16 Acquis ition Agreement and payments thereunder because payments made by a governmental purchaser, here, the City of Henderson,4 are not “transfer[s] by a . . . government unit.” Nev. Rev. Stat. 104.9109(4)(n); see also Former UCC § 9-104, Official Comment 5 (explaining that the governmental exception to the UCC applies only to transactions involving governmental borrowers); United Servs. Auto Ass’n v. Schlang , 894 P.2d 967, 970–71 (Nev. 1995) (recognizing the “general validity of [such] legal principles,” including those presented in the UCC Official Comments). Applying Article 9 here, LID Acquisition lo st priority for its security interest in payments under T-16 when Wells Fargo filed its March 2008 termination
statement. See Nev. Rev. Stat. § 104.9322(1)(a). LID Acquisition’s new theory, asserted for the first time in oral argument, that Wells Fargo was without authority to file such a termination, was not “ar gued specifically and distinctly in [its] opening brief,” Greenwood v. FAA , 28 F.3d 971, 977 (9th Cir. 1994), which stated that Wells Fargo “inadvertently terminated its financing statement in the T-16 Acquisition Agreement.” This new argument is waived. See id

. AFFIRMED

.