NOT FOR PUBLICATION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 APPEALS2

Before: RAWLINSON and OWENS, Circuit Judges, and FITZWATER, ** * District Judge.

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

encumbering i ts 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. § 1 2 91, and we affirm in

part and re mand 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. Berkele y , 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 i d.

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 year s h ave elapsed since the debt secured by the deed of trust

*** The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Te xas, sitting by designation.3

became wholly due either in (1 ) December 2010 when the deed trus tee 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 ma king

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

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

.

See SFR Inv

s

. 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).

T he 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 (Ne v. 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 an d o pening b rief. 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 penden s 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.