NOT FOR PUBLICATION FILED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.

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