James Song v. Mtc Financial, Inc. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES S. SONG; ADRIENNE SONG, No. 19-15144
Plaintiffs-Appellants, D.C. No. 2:18-cv-00757-JCM-PAL
v.
MEMORANDUM*
MTC FINANCIAL, INC., DBA Trustee
Corps; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted July 14, 2020**
San Francisco, California
Before: TALLMAN and HUNSAKER, Circuit Judges, and SILVER,*** District
Judge.
James and Adrienne Song (“Songs”) appeal district court orders denying the
*
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).
***
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
Songs’ motion to remand; granting MTC Financial, Inc., et al.’s (“Defendants”)
motion to dismiss; and denying the Songs’ motion for reconsideration. We have
jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, we affirm the remand
order in full and the dismissal order in part. See Proctor v. Vishay Intertechnology
Inc., 584 F.3d 1208, 1218 (9th Cir. 2009) (remand order); ASARCO, LLC v. Union
Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014) (dismissal order). Because we
remand the dismissal order, we review the district court’s denial of the Songs’
reconsideration motion only for jurisdiction, and we affirm.
On the remand order: The district court properly rejected the Songs’
arguments that Defendants’ removal notice was deficient and that Defendants
waived their ability to remove. Counsel for one of the Defendants, PHH Mortgage
Corporation, “asserted” in the notice that the other Defendants “consent[] to the
removal.” That is “fully sufficient” under controlling precedent. See Proctor, 584
F.3d at 1225. And Defendants did not “clear[ly] and unequivocal[ly]” waive
removal by opposing the Songs’ preliminary injunction motion, which was a
“necessary defensive action.” Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 790
(9th Cir. 2018) (quoting Resolution Tr. Corp. v. Bayside Developers, 43 F.3d 1230,
1240 (9th Cir. 1994)). Nor did Defendants waive removal by invoking Nevada’s
ministerial mechanism for automatically removing judges based on a one-time
peremptory challenge, see Nev. Sup. Ct. R. 48.1 ¶¶ 1–2, which falls “short of
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proceeding to an adjudication on the merits,” see Kenny, 881 F.3d at 790 (quoting
Resolution Tr. Corp., 43 F.3d at 1240).
On the dismissal order: The district court concluded that all seven of the
Songs’ claims “sound[ed] in wrongful foreclosure” and erroneously dismissed the
entire case because the Songs failed to allege that they did not default on their
mortgage. It is clear that, in Nevada, “no default” is an element of a wrongful
foreclosure claim. See Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610,
623 (Nev. 1983). But it is far from clear that a plaintiff must allege “no default”
before bringing discrete claims that relate to foreclosure, where none of those
claims individually require proof of “no default.”
The record does support dismissal of the Songs’ declaratory judgment claim:
contrary to the Songs’ argument, Defendants can nonjudicially foreclose more than
six years after the Songs’ default. See Facklam v. HSBC Bank USA, 401 P.3d
1068, 1071 (Nev. 2017) (en banc). And, in any case, the second notice of default
was rescinded on March 20, 2013, thus “render[ing] moot disputes concerning the
notice of default or its timing.” Holt v. Reg’l Tr. Servs. Corp., 266 P.3d 602, 606
(Nev. 2011). The fourth notice of default was filed on March 16, 2017, meaning
that the foreclosure would have been timely even if the six-year statute of
limitations applied.
The record does not otherwise support dismissal of the Songs’ promissory
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estoppel, intentional misrepresentation, negligent misrepresentation, fraud, civil
conspiracy, and slander of title claims. We remand for the district court to
consider whether those individual claims are plausible. The Songs, on remand, can
move the district court to amend their complaint if they wish.
On the reconsideration order: The district court had jurisdiction to dismiss
the Songs’ case while the interlocutory appeal was pending. See Plotkin v. Pac.
Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982) (“[I]t is firmly established
that an appeal from an interlocutory order does not divest the trial court of
jurisdiction to continue with other phases of the case.”). Because we remand the
dismissal order, we do not consider the Songs’ other arguments on reconsideration.
The parties shall bear their own costs.
AFFIRMED in part and REMANDED with instructions.
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