FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DENNIS TOBLER; CINDI F. TOBLER,

Plaintiffs-Appellants,

v.

SABLES, LLC; BAYVIEW LOAN 

SERVICING, LLC; THE BANK OF NEW 

YORK MELLON,

Defendants-Appellees.

No. 19-15251

D.C. No.

2:18-cv-2220-

JCM-CWH

OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Submitted June 2, 2020*

Portland, Oregon

Filed August 4, 2020

Before: Marsha S. Berzon, Daniel P. Collins, and 

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Collins

* The panel unanimously concludes that this case is suitable for 

decision without oral argument. See FED. R. APP. P. 34(a)(2)(C).
2 TOBLER V. SABLES

SUMMARY**

Nevada Law / Foreclosure Mediation

The panel affirmed the district court’s dismissal of a 

complaint alleging contractual and tortious breaches of the 

implied covenant of good faith and fair dealing in the 

mediation process.

The panel held that a request for judicial relief under 

Nevada’s Foreclosure Mediation Rules is the exclusive 

remedy under Nevada law for challenging a lender’s conduct 

in the foreclosure mediation process. The panel held further 

that all of plaintiffs’ claims rested on defendants’ asserted 

failure to comply with the various requirements of the 

foreclosure mediation program, and these claims could have 

been raised in a timely request for review under Nevada’s 

Foreclosure Mediation Rules. Accordingly, plaintiffs’ 

exclusive remedy under Nevada law for addressing these 

deficiencies was a timely request for judicial review filed 

within the applicable 10-day period set forth in Nevada 

F.M.R. 20(2). The panel concluded that the district court 

correctly held that the plaintiffs’ state common-law claims 

and related requests for declaratory and injunctive relief 

failed to state a claim upon which relief could be granted.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
TOBLER V. SABLES 3

COUNSEL

Harold P. Gewerter, Harolder P. Gewerter Esq. Ltd., Las 

Vegas, Nevada, for Plaintiffs-Appellants.

Natalie L. Winslow and Jamie K. Combs, Akerman LLP, 

Las Vegas, Nevada, for Defendants-Appellees.

OPINION

COLLINS, Circuit Judge:

Dennis and Cindi Tobler appeal from the district court’s 

dismissal of their complaint alleging contractual and tortious 

breaches of the implied covenant of good faith and fair 

dealing against Bank of New York Mellon (“BNYM”) and 

its agents, Sables, LLC and Bayview Loan Servicing, LLC 

(collectively, “Defendants”). We review de novo the district 

court’s dismissal of the complaint for failure to state a claim, 

see Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th 

Cir. 2001), and finding no error, we affirm.

I

In October 2011, BNYM acquired all beneficial interest 

in the deed of trust that secured the mortgage on the Toblers’ 

Las Vegas residence. After the Toblers fell behind on their 

mortgage payments, they sought to avoid foreclosure by 

invoking Nevada’s foreclosure mediation program. As we 

explain in further detail below, that program allows a 

delinquent Nevada mortgagor to seek a loan modification by 

requesting mediation with the lender in accordance with the 

applicable Nevada statute and the “Foreclosure Mediation 

Rules” promulgated under it. See infra at 6–7. Since 2017, 

the manner in which a homeowner triggers the mediation 
4 TOBLER V. SABLES

program is by the filing of a mediation “petition” in the state 

court. See Nev. Rev. Stat. § 107.086(3). The lender may not 

proceed with foreclosure while that petition remains 

pending. Id.

Under the auspices of this mediation program, the 

Toblers attempted on three occasions between September 

2014 and July 2018 to mediate with BNYM’s agents over 

the loan delinquency, but these efforts were unsuccessful.1 

On July 24, 2018, after the third mediation had failed, the 

mediator filed a report with the state court recommending 

that the Toblers’ mediation petition be dismissed. Under the 

applicable rules, the Toblers then had 10 days in which to 

request relief to avoid dismissal, but they did not do so. 

Noting that “[n]o timely objections ha[d] been filed” to the 

mediator’s report, the state court dismissed the Toblers’ 

mediation petition on August 22, 2018. The Toblers did not 

appeal that dismissal.

Having completed the mediation process, on October 18, 

2018, Sables, LLC served the Toblers with a Notice of 

Trustee’s Sale. In response, the Toblers on November 1, 

2018 belatedly filed in state court a petition for judicial 

review of the July 2018 mediation. However, because that 

petition had not been filed within the 10-day period, it was 

stricken as untimely.

On the same day that they filed their belated petition for 

judicial review, the Toblers also filed this civil action against 

Defendants in Nevada state court. The Toblers’ complaint 

asserted that Defendants had acted in bad faith in the 

1 At the time of the third and final mediation in 2018, Bayview Loan 

Servicing, LLC was acting as the loan servicer on behalf of BNYM, and 

Sables, LLC was the appointed Trustee on the deed of trust.
TOBLER V. SABLES 5

mediation process, thereby breaching their contractual and 

tort-based duties arising from the implied covenant of good 

faith and fair dealing. The Toblers sought compensatory and 

punitive damages, as well as declaratory and injunctive 

relief. Defendants removed the case to the district court 

based on diversity jurisdiction under 28 U.S.C. § 1332. 

Defendants thereafter moved to dismiss the complaint for 

failure to state a claim, and the district court granted that 

motion. This appeal followed.

II

The question before the district court was whether a 

request for judicial relief under Nevada’s Foreclosure 

Mediation Rules is the exclusive remedy under Nevada law 

for challenging a lender’s conduct in the foreclosure 

mediation process. It appears that this recurring issue2 has 

yet to be addressed by the Nevada Supreme Court in a 

precedential decision, and we are thus tasked with deciding 

that “issue[] of state law as we believe the state’s highest 

court would decide [it].” HS Servs., Inc. v. Nationwide Mut. 

Ins. Co., 109 F.3d 642, 644 (9th Cir. 1997). We agree with 

the district court that, under Nevada law, the Toblers’ 

exclusive remedy for seeking to challenge Defendants’ 

2 See, e.g., Martin v. Bank of N.Y. Mellon, 2018 WL 387398, at *4 

(D. Nev. Jan. 11, 2018) (timely petition for judicial review is exclusive 

remedy for challenging mediation); Mesi v. Nevada Foreclosure 

Mediation Program, 2014 WL 4929516, at *2 (D. Nev. Aug. 25, 2014) 

(similar); Hine v. Bank of Am., N.A., 2012 WL 273385, at *4 (D. Nev. 

Jan. 30, 2012) (similar); Lalwani v. Wells Fargo Bank, N.A., 2011 WL 

4574338, at *4 (D. Nev. Sept. 30, 2011) (plaintiff complaining of 

mediation deficiencies must first raise those claims in a petition for

review); but cf. Addington v. Bank of Am., N.A., 2013 WL 4040735, at *3 

(D. Nev. Aug. 6, 2013) (petition for judicial review is not the exclusive 

remedy, at least for claims of breach of a settlement contract allegedly 

agreed to at the mediation).
6 TOBLER V. SABLES

mediation-related conduct was a timely request for judicial 

review. As a result, the Toblers’ various causes of action 

based on Nevada common-law duties failed to state a claim 

upon which relief could be granted.

The relevant terms of the Nevada foreclosure mediation

program are set forth in § 107.086 of the Nevada Revised 

Statutes and in the “Foreclosure Mediation Rules” issued by 

the Nevada Supreme Court under § 107.086(12).3

 Subject 

to certain exceptions, the program allows any Nevada 

homeowner facing nonjudicial foreclosure to petition the 

state court for mediation before a designated mediator. See

Nev. Rev. Stat. § 107.086(3). Both sides must participate in 

the mediation in good faith, and each must provide specified 

documents to the other. See id. § 107.086(5)–(6); Nev. 

Foreclosure Mediation Rule (“F.M.R.”) 13. While the 

mediation is ongoing, “no further action may be taken to 

exercise the power of sale.” Nev. Rev. Stat. § 107.086(3).

If the mediation results in an agreement, the mediator 

notifies the state court, which then enters an order reflecting 

the agreed-upon loan modification. See Nev. Rev. Stat. 

§ 107.086(9). If the mediation fails, then the mediator must 

make an initial determination whether the parties complied 

with their obligations under the program. Id. § 107.086(6), 

(8). If the mediator determines that the lender failed to 

participate in good faith or did not provide the required 

documents, then the mediator must submit a 

recommendation to the state court proposing sanctions 

against the lender, which may include requiring a specified 

loan modification. Id. § 107.086(6). But if the mediator 

determines that the parties acted in good faith, the mediator 

3 We rely on the versions of the statute and rules that governed the 

final and dispositive 2018 mediation.
TOBLER V. SABLES 7

must then submit a recommendation that the mediation 

petition “be dismissed,” and the state court may thereafter 

issue an order dismissing the petition. Id. § 107.086(8). 

Although the statute plainly contemplates that the parties 

will be afforded an opportunity to respond to the mediator’s 

recommendation before the state court issues its order, the 

statute leaves the details of that procedure to the rules 

promulgated by the Nevada Supreme Court. Those rules 

provide that, “[f]ollowing submission of the mediator’s 

statement, within 10 days, either party may submit a request 

for appropriate relief” to the state court. Nev. F.M.R. 20(2). 

The state court must then issue an appropriate order either 

granting an agreed-upon loan modification, dismissing the 

petition, or sanctioning the lender. Id. 20(3). If the 

mediation petition is dismissed, a certificate is subsequently 

issued that (if there is no other legal obstacle) allows the 

lender to proceed with the foreclosure. Nev. Rev. Stat. 

§ 107.086(8).

Because “[t]he goal of foreclosure mediation is to 

produce an agreed-upon loan modification,” the applicable 

judicial review provisions establish an “expedited” 

proceeding to promptly address any failure to participate in 

the mediation in good faith or to otherwise abide by the 

mediation rules. Holt v. Regional Trustee Servs. Corp., 

266 P.3d 602, 606–07 (Nev. 2011) (en banc). Specifically, 

the ability to request judicial relief in response to the 

mediator’s report “affords a way to challenge compliance 

with the statutory attendance, production, and good faith 

requirements” of the mediation program. Id. at 606. Given 

that the success of the mediation program requires prompt 

enforcement of its requirements, the Nevada Supreme Court 

has stated that an immediate request “for judicial review is 

the exclusive remedy for a homeowner seeking to enforce an 

agreement reached in the mediation program,” Surgeoner-
8 TOBLER V. SABLES

Jernigan v. CitiMortgage, Inc., 2012 WL 5857293, at *1 

(Nev. Nov. 16, 2012) (unpublished “order of affirmance”) 

(emphasis added), and that the Foreclosure Mediation Rules 

“‘necessitate strict compliance’” with the applicable 

deadline for seeking such judicial review, Nationstar 

Mortg., LLC v. Rodriguez, 375 P.3d 1027, 1028 (Nev. 2016) 

(en banc) (quoting Leyva v. National Default Servicing 

Corp., 255 P.3d 1275, 1279 (Nev. 2011) (en banc)). The 

Nevada Supreme Court has further underscored the 

exclusive nature of that judicial-review remedy by holding 

that objections to the mediation process must be resolved 

through that process of judicial review and not “by bringing 

a second proceeding before a different district court judge.” 

Holt, 266 P.3d at 608.

Against this backdrop, we have little difficulty 

concluding that Nevada law does not permit parties to evade 

the mediation program’s exclusive judicial review 

mechanism by repackaging their complaints about the 

adequacy of the mediation process as state common-law 

claims. Where, as here, the Nevada Legislature has created 

a carefully reticulated statutory scheme that contemplates an 

exclusive judicial-review mechanism, Nevada law generally 

disfavors judicial recognition of additional remedies for 

alleged violations of the statutory requirements. Republican 

Attorneys Gen. Ass’n v. Las Vegas Metro. Police Dep’t, 

458 P.3d 328, 332 (Nev. 2020) (“‘Where a statute gives a 

new right and prescribes a particular remedy, such remedy 

must be strictly pursued, and is exclusive of any other.’” 

(citation omitted)); accord Richardson Constr., Inc. v. Clark 

County Sch. Dist., 156 P.3d 21, 23 (Nev. 2007) (“[W]hen a 

statute provides an express remedy, courts should be 

cautious about reading additional remedies into the 

statute.”).
TOBLER V. SABLES 9

Here, all of the Toblers’ claims rest on Defendants’ 

asserted failure to comply with the various requirements of 

the foreclosure mediation program, and these claims could 

have been raised in a timely request for review under the 

Foreclosure Mediation Rules. Accordingly, the Toblers’ 

exclusive remedy under Nevada law for addressing these 

deficiencies was a timely request for judicial review filed 

within the applicable 10-day period set forth in Nevada 

F.M.R. 20(2).4 As a result, the district court correctly held 

that the Toblers’ state common-law claims and related 

requests for declaratory and injunctive relief failed to state a 

claim upon which relief could be granted. See Fed. R. Civ. 

P. 12(b)(6). We therefore affirm the district court’s 

dismissal of the Toblers’ action.

AFFIRMED.

4 Because the Toblers do not contend that Defendants engaged in 

fraud during the mediation process, we have no occasion to address 

whether Nevada law would permit a separate action asserting a commonlaw claim for fraud in that distinct context. Cf. Nationstar Mortg., 

375 P.3d at 1029 n.2 (suggesting in dicta that such an action might be 

appropriate). Here, the Toblers’ claims rest on precisely the sorts of 

issues that the mediation program requires a party to raise during the 

mediation process itself.