ORDERED PUBLISHED

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re:

CENSO, LLC,

Debtor.

BAP No. NV-21-1125-LTF

Bk. No. 2:19-bk-16636-MKN

Adv. No. 2:20-ap-01077-MKN

OPINION

CENSO, LLC,

Appellant,

v.

NEWREZ, LLC, dba Shellpoint Mortgage 

Servicing; BANK OF AMERICA, N.A.; 

FEDERAL NATIONAL MORTGAGE 

ASSOCIATION,

Appellees.

Appeal from the United States Bankruptcy Court

for the District of Nevada

Mike K. Nakagawa, Bankruptcy Judge, Presiding

APPEARANCES:

Christopher P. Burke argued for appellant; Natalie L. Winslow of Akerman 

LLP argued for appellees NewRez, LLC and Federal National Mortgage 

Association; Ramir M. Hernandez of Wright, Finlay & Zak, LLP appeared

for appellee Bank of America, N.A.

Before: LAFFERTY, TAYLOR and FARIS, Bankruptcy Judges.

FILED

APR 5 2022

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
2

LAFFERTY, Bankruptcy Judge:

INTRODUCTION

Chapter 111 debtor Censo, LLC (“Censo”) filed an adversary 

proceeding against appellees NewRez, LLC dba Shellpoint Mortgage 

Servicing (“Shellpoint”), Bank of America (“BANA”), and Federal National 

Mortgage Association (“Fannie Mae”), seeking a declaration that the deed 

of trust encumbering Censo’s property was invalid due to errors in the 

document. Shellpoint, joined by BANA and Fannie Mae, moved to dismiss 

the complaint under Civil Rule 12(b)(6), applicable via Rule 7012. The 

motion asserted that the claims in the adversary proceeding were barred by 

claim preclusion based on an order entered in litigation in the United States 

District Court finding that Censo’s predecessor-in-interest had taken title to 

the property subject to Fannie Mae’s senior lien. The bankruptcy court 

agreed. It also found that the alleged defects in the deed of trust were not 

legally sufficient to invalidate the document under Nevada law, but it 

declined to grant leave to amend because of its claim preclusion finding.

On appeal, Censo argues for the first time that the district court’s 

order, which was entered post-petition, is void as a violation of the 

automatic stay. We disagree and AFFIRM.

1 Unless specified otherwise, all chapter and section references are to the 

Bankruptcy Code, 11 U.S.C. §§ 101–1532. “Rule” references are the Federal Rules of 

Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of Civil 

Procedure.
3

FACTS2

A. Pre-Petition Events

In December 2009, James Pengilly borrowed $414,000 from 

BANA. He executed a promissory note secured by a deed of trust in favor 

of BANA encumbering a condominium unit located on Allerton Park Drive 

in Las Vegas, Nevada (the “Property”). The loan is currently owned by 

Fannie Mae and serviced by Shellpoint; Shellpoint is the assignee of the 

deed of trust. 

In 2013, Mr. Pengilly defaulted on his homeowners association 

(“HOA”) assessments, and the HOA initiated foreclosure proceedings. Ke 

Aloha Holdings, LLC (“KAH”) purchased the property at the foreclosure 

sale in December 2013 and transferred the Property to Ke Aloha Holdings 

Series II, LLC (“KAH II”) a year later. KAH II transferred the Property to 

Censo in January 2019. KAH, KAH II, and Censo are all managed by 

Melani Schulte.

In the meantime, in 2014, Mr. Pengilly sued the HOA board

members, KAH, and others in state court, seeking to quiet title to the 

Property and to obtain declaratory relief that the foreclosure sale was 

2 Where necessary, we have exercised our discretion to take judicial notice of the

dockets and imaged papers filed in debtor’s bankruptcy case, the related adversary

proceeding, and District Court Case No. 2:14-cv-01463-RFB-NJK. See O'Rourke v. 

Seaboard Surety Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957-58 (9th Cir. 1989) (appellate 

court may take judicial notice of bankruptcy records); United States ex rel. Robinson 

Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (appellate court 

may take judicial notice of proceedings in other state or federal courts if those 
4

unlawful. KAH filed an answer, counterclaims against Mr. Pengilly, and 

cross-claims against Mr. Pengilly and Amanda M. Pengilly, as trustees of 

the James W. Pengilly Trust, BANA, the Internal Revenue Service, and 

Green Tree Servicing, LLC (“Green Tree”), which at that time was the 

servicer of the note and the beneficiary under the deed of trust. The crossclaims were for quiet title and declaratory relief that the HOA sale

extinguished the deed of trust. After the case was removed to the United 

States District Court for the District of Nevada, Green Tree filed an answer

to KAH’s cross-complaint and a counterclaim against KAH for quiet title 

and declaratory relief that its lien was not affected by the foreclosure. In 

May 2019, Ditech Financial LLC f/k/a Green Tree Servicing, LLC (“Ditech”) 

moved for summary judgment on its counterclaims.

B. Bankruptcy events

Censo filed a chapter 11 petition in October 2019. Shortly thereafter, 

the district court entered an order granting Ditech’s motion for summary 

judgment, declaring that KAH had taken title to the Property subject to 

Fannie Mae’s senior lien (“the “DC Order”).

In July 2020, the bankruptcy court granted in part Shellpoint’s motion 

for relief from stay to enforce its rights under its deed of trust. While that

motion was pending, Censo filed an adversary proceeding against 

Shellpoint, BANA, and Fannie Mae. In its amended complaint, Censo 

proceedings have a direct relation to matters at issue).
5

sought disallowance of Shellpoint’s secured claim based on errors in the 

deed of trust.

The relevant allegations of the amended complaint (as clarified by the 

exhibits to the complaint)3 are summarized as follows:

1. KAH purchased the Property in December 2013 at an HOA 

foreclosure sale. Melani Schulte was a principal of both KAH

and Censo. On December 31, 2014, KAH transferred title to 

KAH II. Censo is the current owner of the Property.

2. In October 2019, in a quiet title action brought by Mr. Pengilly, 

the United States District Court entered an order finding that 

KAH was the owner of the Property subject to a deed of trust 

held by Fannie Mae.

3. The deed of trust omits language regarding the HOA, West 

Charleston Lofts. The deed of trust also contains an incorrect 

address: the street number is listed as 1141, while the correct 

number is 11411. A reasonable inspection would not properly 

reference the Property because it is missing material language

and has the wrong physical address.

3 The exhibits are copies of the DC Order and several recorded documents 

affecting the Property. The bankruptcy court properly considered those exhibits in 

making its ruling without treating the motion to dismiss as a motion for summary

judgment, based on its conclusion that the exhibits were integral to and explicitly relied 

on in the complaint, and no party objected to their authenticity or admissibility. See 

Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
6

4. Because of these issues, the deed of trust is unperfected, and 

Shellpoint’s claim is unsecured.

5. Shellpoint has not substantiated that it is a real party-in-interest 

with respect to the Property.

Shellpoint moved to dismiss the amended complaint under Civil 

Rule 12(b)(6). Shellpoint argued that: (1) the relief sought by Censo was 

barred by claim preclusion,4 based on the DC Order; and (2) the defects in

the deed of trust did not invalidate it. BANA and Fannie Mae joined in the 

motion to dismiss.

Censo filed an opposition in which it contended that Shellpoint had 

not established all the elements of claim preclusion. Specifically, it argued 

that the parties were not the same because Ditech, not Shellpoint, was the 

servicer at the time of the foreclosure sale. It also argued that the claims 

were different because the district court action did not determine whether 

Shellpoint’s claim should be allowed. Censo also alleged that it could not

have brought its claims in the district court action because the deed of trust 

at issue was not disclosed until April 2019, just before the motion for 

summary judgment was filed in that action. Censo further asserted that the 

errors in the deed of trust were material. Finally, Censo argued that 

Shellpoint was not a real party-in-interest because it had not filed a claim 

4 Although the parties use the term “res judicata,” we will use the term “claim 

preclusion,” as encouraged by the Supreme Court. Robi v. Five Platters, Inc., 838 F.2d 

318, 321 n.2 (9th Cir. 1988) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 

77 n.1 (1984)).
7

or substantiated that it was the real party-in-interest with respect to the 

Property.

After a hearing, the bankruptcy court entered its order granting the 

motion to dismiss, finding that the elements for claim preclusion were 

present. The court also found that the complaint failed to allege a sufficient 

legal or factual basis for concluding that the defects in the deed of trust 

were sufficient to render it invalid. Because it found that Censo’s claims 

were barred by claim preclusion, it denied leave to amend as futile. Censo 

timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 

157(b)(2)(K). We have jurisdiction under 28 U.S.C. § 158.

ISSUES

Is the DC Order void as a violation of the automatic stay?

Did the bankruptcy court abuse its discretion in denying leave to 

amend?

STANDARDS OF REVIEW

We review de novo the bankruptcy court’s grant of a Civil Rule 

12(b)(6) motion to dismiss. Movsesian v. Victoria Versicherung AG, 670 F.3d 

1067, 1071 (9th Cir. 2012) (en banc). The scope or applicability of the 

automatic stay under § 362 is also reviewed de novo. Lehman Com. Paper, 

Inc. v. Palmdale Hills Prop., LLC (In re Palmdale Hills Prop., LLC), 423 B.R. 655, 

663 (9th Cir. BAP 2009), aff’d, 654 F.3d 868 (9th Cir. 2011). Under de novo 
8

review, we look at the matter anew, as if it had not been heard before, and 

as if no decision had been rendered previously, giving no deference to the 

bankruptcy court’s determinations. Freeman v. DirecTV, Inc., 457 F.3d 1001, 

1004 (9th Cir. 2006).

We review the bankruptcy court’s dismissal of a complaint without 

leave to amend for abuse of discretion. Tracht Gut, LLC v. L.A. Cnty.

Treasurer & Tax Collector (In re Tracht Gut, LLC), 836 F.3d 1146, 1150 (9th Cir. 

2016). A bankruptcy court abuses its discretion if it applies the wrong legal 

standard, misapplies the correct legal standard, or makes factual findings 

that are illogical, implausible, or without support in inferences that may be

drawn from the facts in the record. United States v. Hinkson, 585 F.3d 1247, 

1262 (9th Cir. 2009) (en banc).

DISCUSSION

A. Standard under Civil Rule 12(b)(6)

Under Civil Rule 12(b)(6), applicable in bankruptcy by Rule 7012, 

dismissal is proper if a complaint fails to allege “enough facts to state a 

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). While detailed factual allegations are not required, 

mere labels and conclusions or a formulaic recitation of the elements of a 

cause of action are not enough. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

B. Federal claim preclusion standards

Claim preclusion prohibits lawsuits on any claims that were raised or

could have been raised in a prior action. Stewart v. U.S. Bancorp, 297 F.3d 
9

953, 956 (9th Cir. 2002). Claim preclusion under federal law applies when 

there is “(1) an identity of claims; (2) a final judgment on the merits; and 

(3) identity or privity between parties.” Id. (citation omitted). In the 

bankruptcy court, Censo argued that the first and third elements were not 

met, but it did not dispute that the DC Order was final and on the merits. 

On appeal, Censo has abandoned its arguments with respect to the first 

and third elements and focuses solely on its new argument, that the entry 

of the DC Order violated the automatic stay because it was entered postpetition and involved property of the estate. Thus, Censo argues, the

second element is not met because the DC Order is void.

Ordinarily, federal appellate courts will not consider issues not 

properly raised in the trial courts. In re E.R. Fegert, Inc., 887 F.2d at 957. We 

may, however, consider an issue raised for the first time on appeal if

“(1) there are ‘exceptional circumstances’ why the issue was not raised in 

the trial court, (2) the new issue arises while the appeal is pending because 

of a change in the law, or (3) the issue presented is purely one of law and 

the opposing party will suffer no prejudice as a result of the failure to raise 

the issue in the trial court.” Franchise Tax Bd. v. Roberts (In re Roberts), 175 

B.R. 339, 345 (9th Cir. BAP 1994) (quoting United States v. Carlson, 900 F.2d 

1346, 1349 (9th Cir. 1990)). The question of whether the DC Order was void 

as a stay violation is a purely legal issue. Shellpoint argues that it is 

prejudiced because it was deprived of the opportunity to move for 

retroactive relief from stay, but it has addressed the issue in its briefing, 
10

and even if we were to conclude that the stay was violated, Shellpoint 

could seek retroactive relief once this appeal is final.

5

C. Entry of the DC Order did not violate the automatic stay.

Censo argues, with virtually no analysis, that the DC Order violated 

§§ 362(a)(1), (a)(3), (a)(4), and (a)(5) as the continuation of an action against 

the debtor, an act to exercise control over estate property, or an act to 

create, perfect, or enforce a lien against property of the estate or property of 

the debtor. We disagree.

“The automatic stay serves the debtor’s interests by protecting the 

estate from dismemberment, and it also benefits creditors as a group by 

preventing individual creditors from pursuing their own interests to the 

detriment of the others.” City of Chicago v. Fulton, 141 S. Ct. 585, 589 (2021).

To that end, the stay protects the status quo by prohibiting certain acts 

affecting property of the debtor or the estate. See id. at 590.

5 Shellpoint asserts several theories under which it contends Censo is barred from 

raising the stay violation issue on appeal because it was not raised in the bankruptcy 

court. But the doctrines asserted by Shellpoint (judicial estoppel, waiver, law of the case, 

ratification, and invited error) have no applicability in the automatic stay context. See 

Morris v. Peralta (In re Peralta), 317 B.R. 381, 389 (9th Cir. BAP 2004) (because the

automatic stay is effective against the world, regardless of notice, acts in violation of the 

stay are automatically void ab initio (citing Schwartz v. United States (In re Schwartz), 954 

F.2d 569, 572–74 (9th Cir. 1992))); see also Ostano Commerzanstalt v. Telewide Sys., Inc., 790 

F.2d 206, 207 (2d Cir. 1986) (debtor may neither unilaterally waive nor limit the scope of 

the automatic stay). But see Parker v. Saunders (In re Bakersfield Westar, Inc.), 226 B.R. 227, 

231 n.8 (9th Cir. BAP 1998) (declining to consider debtors’ argument that a fraudulent 

transfer complaint filed by the chapter 7 trustee in their corporate case violated the stay 

in their personal bankruptcy case because the argument was not raised in the 

bankruptcy court).
11

1. The District Court’s grant of summary judgment on Ditech’s 

counterclaims did not violate § 362(a)(1) because those

counterclaims were in substance a defense to KAH’s crossclaims, which were simultaneously dismissed.

Section 362(a)(1) provides that the filing of a bankruptcy petition 

operates as a stay of

the commencement or continuation, including the issuance or 

employment of process, of a judicial, administrative, or other 

action or proceeding against the debtor that was or could have 

been commenced before the commencement of the case under 

this title, or to recover a claim against the debtor that arose 

before the commencement of the case under this title[.]

The plain language of this provision indicates that the stay applies 

only to actions against the debtor. See also In re Palmdale Hills Prop., LLC, 

423 B.R. at 663-64 (automatic stay inapplicable to lawsuits initiated by the 

debtor, and a defendant in an action brought by the debtor may defend 

itself in that action without violating the automatic stay); Gordon v. 

Whitmore (In re Merrick), 175 B.R. 333, 336-38 (9th Cir. BAP 1994) (stay is 

inapplicable to post-petition defensive action in a pre-petition suit brought 

by the debtor, citing cases).

The cases holding that a creditor’s defense of claims brought by a 

debtor do not violate the automatic stay typically involve facially defensive

actions such as moving for summary judgment of dismissal of a complaint 

filed by a debtor. See, e.g., In re Merrick, 175 B.R. at 334. On the other hand,

the commencement or continuation of a creditor’s counterclaim for 

affirmative relief will generally be construed as a stay violation. See Eisinger 
12

v. Way (In re Way), 229 B.R. 11, 14 (9th Cir. BAP 1998) (because a 

counterclaim is an independent cause of action, relief from stay must be 

sought to continue its prosecution). The analysis is more complicated in 

multiple party/multiple claim litigation. In such litigation, “who filed the 

complaint is not dispositive of whether the case involves an action or 

proceeding against the debtor.” Parker v. Bain, 68 F.3d 1131, 1137 (9th Cir. 

1995). Instead, the claims and parties “must be disaggregated so that 

particular claims, counterclaims, cross claims and third-party claims are 

treated independently when determining which of their respective 

proceedings are subject to the bankruptcy stay.” Id. (quoting Maritime Elec.

Co. v. United Jersey Bank, 959 F.2d 1194, 1204-06 (3d Cir. 1992)). We must 

analyze “whether, at its inception, the claim was ‘against the debtor’; one

must not look at who most recently prevailed at any subsequent point[.]”

In re Mid-City Parking, Inc., 332 B.R. 798, 806-07 (Bankr. N.D. Ill. 2005).

KAH’s cross-claims against Ditech sought a declaration that title to 

the Property was vested in KAH free and clear of all liens and 

encumbrances and that “counterdefendants,” including Ditech, had no 

estate, right, title, or interest in the Property. It was KAH, not Ditech, which

initially sought a determination of the validity of Ditech’s interest in the 

Property. Ditech’s counterclaims sought to quiet title and for a declaration 

that it was the holder of a first position deed of trust on the Property as

against all other claimants, including KAH. Those counterclaims were the 

mirror image of KAH’s claims against Ditech; as such, Ditech’s motion for 
13

summary judgment sought resolution of the identical issues raised in 

KAH’s cross-claims. Under a common sense interpretation of the DC 

Order, Ditech’s counterclaims were in substance a defense to KAH’s 

assertion that Ditech had no interest in the Property. See Civil Rule 8(c)(2) 

(“If a party mistakenly designates a defense as a counterclaim, or a 

counterclaim as a defense, the court must, if justice requires, treat the 

pleading as though it were correctly designated, and may impose terms for 

doing so.”). Those counterclaims never would have been filed but for KAH 

bringing Ditech into the litigation by filing its cross-complaint. And as 

discussed in our analysis of § 362(a)(3), the status quo was that Ditech’s 

interest was of record. Accordingly, all Ditech was doing was defending its 

lien against KAH’s attack.

When the District Court granted summary judgment in favor of

Ditech on its counterclaims, it simultaneously disposed of KAH’s crossclaims:

[T]he Court grants summary judgment in favor of Ditech and 

declares that the Federal Foreclosure Bar prevented the 

foreclosure sale from extinguishing Fannie Mae’s interest in the 

property. The Court finds this holding to be decisive as to all 

claims in this matter and dismisses the remaining claims as a 

result.

Those claims included KAH’s cross-claims against Ditech. As a result, the 

DC Order did not violate § 362(a)(1) even though it disposed of Ditech’s 

counterclaims against KAH. 
14

Our conclusion is limited to the unique facts of this case. Here, none 

of the policy reasons for § 362(a)’s stay of litigation against a debtor are 

implicated. The entry of the DC Order did not diminish the estate, nor did 

it unfairly benefit one creditor over another.6 Under these circumstances, 

§ 362(a)(1) is simply not implicated.

2. Entry of the DC Order did not violate § 362(a)(3) because it 

did not change the status quo.

Under § 362(a)(3), the stay applies to “any act to obtain possession of 

property of the estate or of property from the estate or to exercise control 

over property of the estate[.]” Acts that simply maintain the status quo do 

not violate the automatic stay. Fulton, 141 S. Ct. at 590. In Fulton, the 

Supreme Court held that the City of Chicago did not exercise control over 

property of the estate in violation of the stay when it retained possession of 

debtors’ impounded vehicles post-petition. Id. at 589-90. According to the

Court, “the language of § 362(a)(3) implies that something more than 

merely retaining power is required to violate the disputed provision.” Id. at 

590. Instead, § 362(a)(3) “prohibits affirmative acts that would disturb the 

status quo of estate property as of the time when the bankruptcy petition 

was filed.” Id. Here, Shellpoint’s lien existed as of the petition date, and the 

DC Order simply affirmed the validity of the existing lien. It did not affect 

6 Censo’s schedules, which were not filed until December 2019, include

Shellpoint’s secured claim encumbering the Property. That claim is characterized as 

contingent and disputed based not on the theory that the first position lien had been 

extinguished, but on “wrong address and legal description on Note and Deed of Trust.”
15

KAH’s possession or control of the Property. The DC Order thus did not 

disturb the status quo and did not violate § 362(a)(3).

3. Entry of the DC Order did not violate §§ 362(a)(4) or (a)(5) 

because it was not an act to create, perfect, or enforce a lien.

Sections 362(a)(4) and (a)(5) provide that the stay applies to any act to 

create, perfect, or enforce a lien against property of the estate or property of 

the debtor, if the lien secures a pre-petition claim. Censo offers absolutely 

no factual or legal basis to conclude that the DC Order violated the 

automatic stay under this subsection. KAH’s cross-claims initiated the 

dispute over the existence of the lien and thus cannot be construed as an 

act to create, perfect, or enforce a lien, and Ditech defended the crossclaims with its counterclaims. As discussed, the DC Order simultaneously 

disposed of all claims in the lawsuit, including KAH’s cross-claims. We 

note that when Shellpoint wanted to enforce its deed of trust, it obtained an 

order from the bankruptcy court granting relief from stay.

One of the lessons of Fulton is that not every post-petition act or 

omission that could conceivably affect property of the debtor or the estate 

is a stay violation. A debtor cannot simply proclaim a stay violation but 

must carefully analyze and apply the specific subsection of § 362(a). Censo 

has utterly failed in that regard. We conclude that the DC Order is not void

as a violation of the automatic stay.7

7 In any event, the bankruptcy court has the power to enter an order retroactively 

lifting the stay if appropriate. Fjeldsted v. Lien (In re Fjeldsted), 293 B.R. 12, 21 (9th Cir. 

BAP 2003).
16

D. Censo has waived any argument that the other elements of claim 

preclusion were not met.

Censo has abandoned its arguments that the other elements of claim 

preclusion are not met and that it adequately pleaded its causes of action.

Accordingly, those arguments are waived. See Smith v. Marsh, 194 F.3d 

1045, 1052 (9th Cir. 1999). The bankruptcy court did not err in granting the 

motion to dismiss.

E. The bankruptcy court did not abuse its discretion in denying leave 

to amend.

Although Censo did not request leave to amend, the bankruptcy 

court correctly considered whether any amendment could cure the 

deficiencies of the complaint. See Cook, Perkiss & Liehe, Inc. v. N. Cal.

Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (directing that “a [trial]

court should grant leave to amend even if no request to amend the 

pleading was made, unless it determines that the pleading could not 

possibly be cured by the allegation of other facts”).

Leave to amend is to be freely given. See Civil Rule 15; Tracht Gut, 

LLC v. L.A. Cnty. Treasurer & Tax Collector (In re Tracht Gut, LLC), 503 B.R. 

804, 814 (9th Cir. BAP 2014), aff’d, 836 F.3d 1146 (9th Cir. 2016). At the same 

time, if the bankruptcy court determines that amendment would be futile, 

it must dismiss the complaint with prejudice. Id. at 815. 

Given the bankruptcy court’s finding that claim preclusion barred the 

requested relief, amendment would have been futile. Thus, the court did 

not abuse its discretion in denying leave to amend. Censo nevertheless 
17

requests that, if the Panel disagrees that the DC Order is void, we should

remand with instructions to permit Censo to amend its complaint. Censo 

does not seem to grasp that if the Panel finds the DC Order valid, claim 

preclusion applies to bar any claim that Shellpoint’s lien is not valid. Censo 

states that there are claims available in bankruptcy that could not have 

been brought in the district court litigation, but except for the conclusory 

statement that “it is possible that amended claims are available,” Censo 

articulates no plausible claim that it could assert in an amended complaint.

CONCLUSION

For these reasons, the bankruptcy court did not err in granting the 

motion to dismiss without leave to amend. We AFFIRM.8

8 The day before oral argument in this appeal, Censo’s counsel filed a letter

attaching a copy of the Nevada Supreme Court’s recent decision in U.S. Bank, N.A. v. 

Thunder Properties, Inc., 503 P.3d 299 (Nev. 2022). There, the court addressed questions 

certified to it by the Ninth Circuit Court of Appeals regarding what statute of 

limitations applies to a lienholder’s claim for declaratory relief that its lien was not 

extinguished by an HOA foreclosure sale. The court held that such a claim is governed 

by the four-year statute of limitations of Nevada Revised Statutes § 11.220, but the 

limitations period in that case was not triggered solely by the HOA foreclosure sale.

Censo suggests that, based on this authority, if the Panel agrees that the DC Order is 

void, Shellpoint is not necessarily time-barred from obtaining a declaratory judgment 

regarding the validity of its lien. We express no opinion on the impact of this case.