facts alleging LREP’s fraudulent inducement into the Agreement specifically, as

separate from the guaranties. Accordingly, any potential injuries Guarantors had

suffered were not “unknown” when they signed the Agreement and thus did not

survive the Agreement’s waiver—and the Agreement is not otherwise voidable.

Dansby v. Buck, 373 P.2d 1, 8 (Ariz. 1962).

2. Guarantors alternatively argue that Arizona’s law requiring actions to

recover a deficiency judgment to be filed within 90 days of the trust property’s sale

is a statute of repose. Ariz. Rev. Stat. § 33-814(A), (D). Accordingly, they assert,

LREP’s substantive right to recover a deficiency was extinguished 90 days after

the foreclosure sale—well before it filed its Complaint.

Arizona courts have not decided whether § 33-814(D) is a statute of

3 limitations or a statute of repose, nor whether its limitations period may be

expressly waived. But we predict the Arizona Supreme Court would hold that

§ 33-814(D) is a statute of limitations. Dimidowich v. Bell & Howell, 803 F.2d

1473, 1482 (9th Cir. 1986) (stating that in a diversity case where “the state’s

highest court has not decided an issue, the task of the federal courts is to predict

how the state high court would resolve it”). The Arizona Supreme Court has

explained that statutes of limitations “begin to run after an injury occurs and

is . . . discovered,” but that statutes of repose set a time limit “regardless of when

the cause of action may accrue.” Albano v. Shea Homes Ltd. P’ship, 254 P.3d 360,

366 (Ariz. 2011) (en banc) (quoting Evans Withycombe, Inc. v. W. Innovations,

Inc., 159 P.3d 547, 550 (Ariz. Ct. App. 2006)). The 90-day limit prescribed in

§ 33-814(D) begins to run after the trust property’s sale—the point at which a

creditor discovers his injury if the sale results in a deficiency and thus when his

cause of action accrues.

Even if § 33-814(D) were a statute of repose, we predict the Arizona

Supreme Court would hold that it may be expressly waived in this situation.

Arizona courts look to a statute’s purpose to determine whether statutory

protections may be expressly waived. See CSA 13-101 Loop, LLC v. Loop 101,

LLC, 341 P.3d 452, 455 (Ariz. 2014) (considering Arizona’s policy of “protecting

[debtors] against artificially increased deficiency judgments” in holding that § 33-

4 814(A)’s fair market value provision could not be prospectively waived). The

“purpose” of § 33-814(D) “is to protect defaulting debtors by giving them prompt

notice of a creditor’s intent to pursue an action for deficiency.” Valley Nat’l Bank

of Ariz. v. Kohlhase, 897 P.2d 738, 741 (Ariz. Ct. App. 1995). That purpose is met

when, as here, parties enter a settlement agreement days after a foreclosure sale in

which a creditor states his intent to file a deficiency action upon breach. We thus

conclude that Guarantors’ waiver of § 33-814(D) is enforceable.

Finally, even if the district court abused its discretion by denying leave to

amend Guarantors’ counterclaim without first considering whether it could be

saved by amendment, Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858,

871 (9th Cir. 2016), any error was harmless. From the face of the proposed

amended counterclaim, it is clear amendment would have been futile because the

amended counterclaim would not have sufficiently alleged fraud. See id.

AFFIRMED.1

1 Because we affirm, we do not consider Guarantors’ argument that the award of attorney’s fees should be revisited if they prevail on appeal. Guarantors’ motion to take judicial notice, Docket No. 42, is GRANTED.

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