FILED

NOT FOR PUBLICATION

NOV 24 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BANK OF AMERICA, N.A., FKA No. 20-16624 Countrywide Home Loans Servicing, LP, Successor by Merger on behalf of BAC D.C. No. 2:16-cv-02835-APG-DJA Home Loans Servicing, LP; FEDERAL

NATIONAL MORTGAGE

ASSOCIATION, MEMORANDUM*

Plaintiffs-Appellees,

v.

SUMMIT REAL ESTATE GROUP, INC.,

Defendant-Appellant,

and

ESTRELLA II HOMEOWNERS

ASSOCIATION; NEVADA

ASSOCIATION SERVICES, INC.,

Defendants.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted November 15, 2021 San Francisco, California

Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.

Defendant-appellant Summit Real Estate Group, Inc., (“Summit”) appeals

from the district court’s grant of summary judgment to plaintiffs-appellees Federal

National Mortgage Association (“Fannie Mae”), a regulated entity under the

conservatorship of the Federal Housing Finance Agency (“FHFA”), and Bank of

America (“BANA”), the loan servicer for Fannie Mae. On appeal, Summit

contends that the Nevada ancient-lien statute, codified at Nev. Rev. Stat.

§ 106.240, terminated Fannie Mae’s deed of trust securing a mortgage on a

residential property. The district court held that Nev. Rev. Stat. § 106.240 did not

terminate the deed of trust because BANA’s 2011 rescission of its 2009 notice of

default effectively canceled the acceleration of the mortgage loan.

We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Zetwick

v. Cnty. of Yolo, 850 F.3d 436, 440 (9th Cir. 2017), we affirm.

The Nevada Supreme Court recently held that, where a prior notice of

default accelerates a mortgage loan and makes it wholly due, a subsequent

rescission of that notice of default effectively cancels the acceleration of the

mortgage contained therein. Glass v. Select Portfolio Servicing, Inc., 466 P.3d 939

2 (Table), 2020 WL 3604042, at *1 (Nev. July 1, 2020) (unpublished). Although

Glass is an unpublished opinion, under Nev. R. App. P. 36(c)(3) unpublished

decisions issued by the Nevada Supreme Court on or after January 1, 2016, can be

cited for their persuasive value.

Because the facts of Glass are similar to the undisputed facts here, we find it

persuasive. BANA recorded a notice of default that accelerated the mortgage in

2009, making it wholly due. In 2011, BANA recorded a rescission of election to

declare default, which “rescind[ed], cancel[ed] and withdr[e]w the [2009] Notice

of Default and Election to Sell.” Under Glass, BANA’s 2011 rescission effectively

canceled the acceleration of the mortgage by expressly revoking the 2009 notice of

default. The fact that BANA, in 2019, recorded a second rescission explicitly

revoking the acceleration of the mortgage does not mean that the first rescission

had not already canceled the acceleration under Glass. Nev. Rev. Stat. § 106.240

is thus inapplicable because the mortgage ceased to be wholly due in 2011.

The FHFA, as amicus curiae, argues that a federal statute of limitations that

provides the FHFA with at least six years to assert its claims preempts Nev. Rev.

Stat. § 106.240, to the extent that the latter extinguishes the FHFA’s otherwise

timely claims under the federal statute of limitations. See 12 U.S.C.

3 § 4617(b)(12)(A). Because we hold that Nev. Rev. Stat. § 106.240 is not

applicable to this case, we do not reach this question.

AFFIRMED.

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