NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

7321 WANDERING STREET TRUST, 

Plaintiff-Appellant, 

 v. 

NEW RESIDENTIAL MORTGAGE LOAN 

TRUST 2020-NPL2, 

Defendant-Appellee, 

and 

FIRST AMERICAN TRUSTEE 

SERVICING SOLUTIONS, LLC; NEVADA 

LEGAL NEWS, 

Defendants.

No. 22-15526 

D.C. No. 

2:21-cv-01193-JAD-EJY 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Jennifer A. Dorsey, District Judge, Presiding

Submitted October 2, 2023**

Las Vegas, Nevada

* 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).

FILED

OCT 5 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: RAWLINSON and OWENS, Circuit Judges, and FITZWATER,***

District Judge.

The 7321 Wandering Street Trust (WST) filed suit to establish that the lien 

encumbering its property was extinguished under Nevada’s ancient lien statute. 

Nev. Rev. Stat. (NRS) § 106.240. WST also recorded a lis pendens to prevent 

foreclosure by New Residential Mortgage Trust (NewRez) during the litigation. 

The district court dismissed WST’s claim, holding that the loan had not become

wholly due under NRS § 106.240, but did not address NewRez’s request to cancel 

the lis pendens. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in 

part and remand in part.

We review a dismissal for failure to state a claim de novo. L.A. Lakers, Inc. 

v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017). We also review interpretations 

of state law de novo, following the decisions of the state’s highest court. Ariz. 

Elec. Power Coop., Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir. 1995). In the 

absence of such a decision, we must predict how the highest state court would 

decide the issue. See id.

1. Under NRS § 106.240, a lien under a deed of trust is “conclusively 

presumed . . . discharged” ten years after the debt becomes “wholly due.” WST 

argues that ten years have elapsed since the debt secured by the deed of trust 

*** The Honorable Sidney A. Fitzwater, United States District Judge for 

the Northern District of Texas, sitting by designation.
3 

became wholly due either in (1) December 2010 when the deed trustee filed the 

Notice of Default and Election to Sell or (2) June 2011 when the debt was 

discharged in bankruptcy. 

Even if the 2010 Notice of Default triggered the ten-year period by making

the debt wholly due, the deed trustee’s March 2011 Notice of Rescission undid any 

acceleration of the debt by withdrawing the Notice of Default and Election to Sell. 

See SFR Invs. Pool 1, LLC v. U.S. Bank N.A., 507 P.3d 194, 198 (Nev. 2022) 

(rejecting an argument that a loan remains wholly due after the rescission of a 

notice of default that accelerated the loan).

The 2011 bankruptcy discharge also did not trigger the ten-year period. In a 

factually analogous case decided during the pendency of this appeal, the Nevada 

Supreme Court held that bankruptcy discharge does not make a debt wholly due 

under NRS § 106.240. W. Coast Servicing, Inc. v. Kassler, No. 84122, 2023 WL 

4057073, at *2 (Nev. June 16, 2023) (unpublished).1 The district court therefore 

properly dismissed WST’s claim because neither the rescinded default notice nor 

the bankruptcy discharge made the debt wholly due.2 

1 Though this decision is unpublished, we rely on it as persuasive authority. 

2 WST forfeited its argument that the filing of the bankruptcy petition triggered the 

ten-year period by omitting it from its amended complaint and opening brief. See 

Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018) (“[A]rguments raised for the first 

time on appeal or omitted from the opening brief are deemed forfeited.”).
4 

2. NewRez is entitled to cancellation of the lis pendens recorded against 

the property because WST is not “likely to prevail,” nor does it have “a fair chance 

of success on the merits in the action” having failed to state a claim as a matter of 

law. NRS § 14.015(3). We therefore remand to the district court with instructions 

to grant the requested cancellation of the lis pendens. 

AFFIRMED in part; REMANDED in part.