Trp Fund Viii, LLC v. NEWREZ LLC, DBA Shellpoint Mortgage Servicing

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRP FUND VIII, LLC,
Plaintiff-Appellant,
v.
NEWREZ LLC, DBA Shellpoint Mortgage
Servicing,
Defendant-Appellee.
No. 20-17129
D.C. No.
2:20-cv-01001-APG-BNW
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted December 6, 2021**
San Francisco, California
Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.
TRP Fund VIII, LLC (“TRP Fund”) appeals the district court’s dismissal of
TRP Fund’s action seeking a declaratory judgment that a deed of trust held by Fannie
Mae had been extinguished under Nevada’s “ancient lien” statute. We have
* 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
DEC 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Bain v. Cal. Tchrs. Ass’n,
891 F.3d 1206, 1211 (9th Cir. 2018), we affirm.
Under Nevada’s ancient lien statute, NRS § 106.240, a lien on real property
is presumptively extinguished ten years after the debt becomes wholly due. In an
attempt to avoid the Federal Foreclosure Bar, 12 U.S.C. § 4617(j)(3)—which would
otherwise prevent a homeowner association foreclosure sale from extinguishing
Fannie Mae’s deed of trust—TRP Fund argues that the ancient lien statute
terminated a deed of trust encumbering a property located at 2764 Carnation Lane
in Henderson, Nevada after NewRez LLC’s (“NewRez”) predecessor recorded a
Notice of Default in February 2010. TRP Fund’s claim fails because in September
2012, NewRez’s predecessor recorded a Notice of Recission on the Notice of
Default that decelerated the demand for full payment of the loan. Even assuming
the original Notice of Default triggered the ancient lien statute, by rescinding that
Notice before the statute’s 10-year window closed, NewRez rendered the ancient
lien statute inapplicable.
Recent decisions of the Nevada Supreme Court confirm our conclusion that
the recission notice decelerated the loan and prevented extinguishment of the deed
of trust under the ancient lien statute.1 In SFR Invs. Pool 1, LLC v. U.S. Bank N.A.,
1 We may consider the Nevada Supreme Court’s unpublished decisions to the extent
that they “may lend support to a conclusion as to what the Nevada Supreme Court

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495 P.3d 126 (Nev. 2021) (unpublished), the Nevada Supreme Court considered
whether a recission notice adequately decelerated a loan such that NRS § 106.240
did not extinguish a deed of trust. The court “reasoned that because the Notice of
Rescission rescinded the previously recorded Notice of Default, the Notice of
Rescission ‘effectively cancelled the acceleration’ triggered by the Notice of Default
such that NRS 106.240’s 10-year period was reset.” Id. at *1 (quoting Glass v. Select
Portfolio Servicing Inc., 466 P.3d 939, 2020 WL 3604042, *1 (Nev. 2020)
(unpublished)).
We find the reasoning of the Nevada Supreme Court persuasive and apply it
to the undisputed facts here. The Notice of Recission that NewRez’s predecessor
recorded in 2012 had the effect of canceling any acceleration of the loan that the
Notice of Default may have triggered. Thus, NRS 106.240 does not extinguish the
deed of trust encumbering the property at 2764 Carnation Lane.
AFFIRMED.
would hold in a published decision.” U.S. Bank, N.A., v. White Horse Estates
Homeowners Ass’n, 987 F.3d 858, 863 (9th Cir. 2021) (quotations and alterations
omitted).

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