Western Mortgage & Realty Co. v. Keybank N.A. ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        SEP 18 2017
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    WESTERN MORTGAGE & REALTY                       No.    15-35821
    COMPANY, a Washington corporation,
    D.C. No.
    Plaintiff-Appellant,            1:13-cv-00216-EJL-REB
    v.
    MEMORANDUM*
    KEYBANK NATIONAL ASSOCIATION,
    a national banking association and
    KEYCORP CAPITAL, INC., an Ohio
    corporation,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the District of Idaho
    Edward J. Lodge, District Judge, Presiding
    Argued and Submitted August 28, 2017
    Seattle, Washington
    Before: HAWKINS and McKEOWN, Circuit Judges, and ROTHSTEIN,** District
    Judge.
    Western Mortgage & Realty Co. appeals the district court’s order granting
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Barbara Jacobs Rothstein, United States District Judge
    for the Western District of Washington, sitting by designation.
    summary judgment to KeyBank National Association and KeyCorp Capital, Inc.
    (collectively, “KeyBank”). We have jurisdiction under 
    28 U.S.C. § 1291
    , and we
    affirm.
    On May 23, 2007, Western Mortgage entered into a contract for the
    purchase of certain debts believed to be owned by KeyBank. On August 3, 2010,
    the parties agreed to amend the purchase price for the contract. Western Mortgage
    filed this action on April 9, 2013, alleging that KeyBank failed to transfer good
    title to one of the debts enumerated in the original contract.
    The district court correctly ruled that Western Mortgage’s breach of contract
    and breach of warranties claims are barred by Idaho’s five year statute of
    limitations. See 
    Idaho Code § 5-216
    . The relevant warranties were agreed to in a
    contract that closed on May 23, 2007, which started the statute of limitations.
    Western Mortgage did not file its complaint until nearly six years later. The statute
    of limitations was not restarted when the parties amended the purchase price of the
    contract because that amendment concerned a discrete matter independent of the
    warranties. The statute of limitations also was not restarted by 
    Idaho Code § 5-238
    because that section is inapplicable to the facts here, where a debtor did not
    promise to pay a debt. See Mahas v. Kasiska, 
    276 P. 315
    , 317 (Idaho 1928).
    The district court correctly dismissed Western Mortgage’s fraud claims. The
    district court properly concluded that Western Mortgage could have discovered the
    2                                     15-35821
    alleged fraud by reasonable diligence before April 9, 2010. Thus, Western
    Mortgage’s claim is barred by Idaho’s three year statute of limitations for fraud.
    See 
    Idaho Code § 5-218
    (4). An email sent by KeyBank’s Vice President did not
    constitute fraud because, in context, the email was one of opinion and not of fact.
    See Nelson v. Hoff, 
    218 P.2d 345
    , 349 (Idaho 1950).
    AFFIRMED.
    3                                   15-35821
    

Document Info

Docket Number: 15-35821

Filed Date: 9/18/2017

Precedential Status: Non-Precedential

Modified Date: 9/18/2017