#### STERLING SAVINGS BANK, a Washington chartered commercial bank, Plaintiff-Appellee, v. THORNBURGH RESORT COMPANY, an Oregon limited liability company, Defendant-Appellant.

No. 15-35077

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2017 Portland, Oregon

Filed July 25, 2017

Sanford R. Landress, Attorney, Miller Nash Graham *&*Dunn LLP, Portland, OR, Charles Richard Markley, Esquire, Attorney, Williams Kastner Greene *&*Markley, Portland, OR, for Plaintiff-Appellee

Gary Underwood Scharff, Esquire, Attorney, Law Office of Gary U. Scharff, Portland, OR, Timothy R. Volpert, Portland, OR, for Defendant-Appellant

Before: WATFORD and OWENS, Circuit Judges, and CHHABRIA,* District Judge.

*

**The Honorable Vince Chhabria, United States District Judge for the Northern District of California, sitting by designation.

MEMORANDUM **

Thornburgh Resort Company (“Thorn-burgh”) appeals from the district court’s orders granting Sterling Savings Bank’s (“Sterling”) motion for summary judgment, denying Thornburgh’s partial motion for summary judgment, dismissing Thorn-burgh’s counterclaims, and awarding Sterling attorneys’ fees. As the parties are familiar with the facts, we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and dismiss in part.

1. Thornburgh has no valid impairment of suretyship claims.

Thornburgh obtained suretyship status when it conveyed a trust deed on its property to secure Sterling’s loan to Parker Group Investments (“PGI”), as this was the only contract that granted Sterling recourse against Thornburgh’s property in the event of a PGI default. *See*Restatement (Third) of Suretyship & Guaranty §§ l(l)(a), 2(c).1 Thornburgh performed its secondary obligation to repay Sterling’s loan, via its property, when the trust deed was foreclosed upon on August 31, 2011.

Section 37(4)(a) of the Restatement contemplates a claim based on impairment of suretyship status “[i]f the obligee impairs the secondary obligor’s suretyship status ... *after*the secondary obligor performs any portion of the secondary obligation!].]” § 37(4)(a) (emphasis added). Because the purported impairment—Sterling’s release of PGI’s cash collateral—occurred on December 17, 2007, which is before Thorn-burgh performed, Thornburgh has no claim under § 37(4)(a). Furthermore, Thornburgh has no claim under § 37(4)(b)(i) because it performed with *569knowledge of the impairment. Thornburgh learned of the purported impairment during a deposition on May 3, 2011, and alleged, in two separate suits, including one filed the day before the foreclosure sale, that Sterling impaired Thornburgh’s collateral. Accordingly, Thornburgh had knowledge of the impairment prior to performing.

Therefore, counterclaim 1 was properly dismissed. Further, in the context of Thornburgh’s impairment of suretyship status claim, the Restatement of Surety-ship & Guaranty provides Thornburgh’s exclusive avenue for affirmative relief against Sterling. *See*§ 5 (providing that “all other principles of law and equity” apply “[ujnless inconsistent with the rules in this Restatement”). Accordingly, counterclaims 2, 3, and 4 were properly dismissed.

2. The district court properly dismissed Thornburgh’s motion to strike.

As Thornburgh advanced no valid claims, the district court properly dismissed Thornburgh’s motion to strike as moot.

3. The court lacks jurisdiction to review the award of attorneys’ fees.

“[A]n order on attorneys’ fees is collateral to, and separately appealable from, the judgment.” *Hunt v. City of Los Angeles,*638 F.3d 703, 719 (9th Cir. 2011). This court lacks jurisdiction to review the attorneys’ fees award because Thornburgh did not separately appeal from the supplemental judgment awarding Sterling attorneys’ fees.

AFFIRMED in part and DISMISSED in part.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1

. All subsequent section citations refer to provisions of the Restatement (Third) of Surety-ship & Guaranty. Oregon courts follow the Restatement with respect to suretyship law. *CRM Collateral II, Inc. v. TriCounty Metro. Transp. Dist. of Oregon,*669 F.3d 963, 970 (9th Cir. 2012).