                              NOT FOR PUBLICATION                         FILED
                       UNITED STATES COURT OF APPEALS                      JAN 12 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


    THE RICHARD AND SHEILA J.                       No. 15-16918
    McKNIGHT 2000 FAMILY TRUST,
                                                    D.C. No. 2:10-cv-01617-RCJ-GWF
          Plaintiff,

     v.

    WILLIAM J. BARKETT, an individual; et           MEMORANDUM*
    al.,

          Defendants - Appellants.

     v.

    DEBT ACQUISITION COMPANY OF
    AMERICA V, LLC; et al.

          Third-party-defendants-counter-
          claimants – Appellees.


                       Appeal from the United States District Court
                                for the District of Nevada
                       Robert Clive Jones, District Judge, Presiding




*
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                          1
                             Submitted January 10, 2017†*
                               San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and ERICKSON, *** District
Judge.

         This appeal arises from a complex bankruptcy matter involving three loans,

secured by trust deeds, made to Appellants Castaic Partners LLC, Castaic Partners

II LLC, and Castaic Partners III LLC, and personally guaranteed by Appellant

William Barkett. Over 200 investors (the “Direct Lenders”) hold fractionalized

beneficial interests in those loans. Appellees Debt Acquisition Company of

America V, LLC (“DACA”) and DACA-Castaic, LLC (“DACA-Castaic”) entered

into an agreement (the “Purchase Agreement”) to acquire 100 percent of the

beneficial interest in the Castaic Loans, and subsequently foreclosed on the trust

deeds.

         Two of the Direct Lenders initiated litigation against Appellants, claiming

breach of guaranty and seeking declaratory relief. During the course of litigation

Appellees moved for, and the district court granted, summary judgment on

Appellees’ request for declaratory judgment that (1) the foreclosures were valid,

(2) Appellants had no right to rescind or set aside the foreclosures, and



†*
      The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
†**
       The Honorable Ralph R. Erickson, United States District Judge for the
District of North Dakota, sitting by designation.
                                          2
(3) Appellants had no interest in the properties by virtue of their succession to any

Direct Lender’s interest. The district court additionally granted Appellees’ request

for entry of final judgment on all claims by and against Appellees.

      Appellants now challenge the district court’s summary judgment and entry

of final judgment on the basis that (1) the foreclosures were invalid because

Appellees lacked authority to foreclose and failed to comply with California law

governing foreclosure, and (2) material issues of disputed fact remain regarding the

rights held by the Direct Lenders who did not approve the Purchase Agreement

authorizing DACA-Castaic to foreclose, as well as the rights held by Appellants.

We affirm the district court’s summary judgment and entry of final judgment. 1


1.    Appellants contend that the foreclosures were invalid because Appellees

failed to obtain a Majority Action Affidavit in compliance with California Civil

Code § 2941.9(d). However, under the terms of the governing trust deeds, Nevada

law applied to determine the circumstances under which a minority interest could

be bound by a majority of beneficial interest holders. Nevada Revised Statutes

ch. 645B.340 provides that when multiple parties hold beneficial interests in a

loan, “the holders of the beneficial interest . . . whose interests represent 51 percent



1
       Appellees have filed an unopposed motion for judicial notice requesting that
we take notice of several documents publicly filed in various federal bankruptcy or
district court actions. We grant Appellees’ motion. See Fed. R. Evid. 201.
                                         3
or more of the outstanding principal balance of the loan . . . may act on behalf of

all the holders of the beneficial interests or ownership interests of record.” Thus,

under Nevada law, authorization of Appellees’ action required only a vote of

approval from 51 percent or more of the interest holders. California’s Majority

Action Affidavit requirement did not apply.

2.    Appellants’ next contention, that the district court erred in granting summary

judgment on whether Appellees properly acquired a 51 percent vote authorizing

them to foreclose, fails both procedurally and on the merits. The district court

entered default judgment against Appellants on this point, and Appellants have not

challenged that default judgment. See Friends of Yosemite Valley v. Kempthorne,

520 F.3d 1024, 1033 (9th Cir. 2008) (“Arguments not raised by a party in its

opening brief are deemed waived.”). Furthermore, the record contains ample

unrebutted evidence that over 51 percent of the Direct Lenders voted to approve

the Purchase Agreement, thereby granting DACA-Castaic authority to foreclose.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

3.    Factual questions might exist regarding the rights and identities of the Direct

Lenders who did not vote in favor of the Purchase Agreement. Any such questions

did not, however, preclude summary judgment on Appellees’ requested declaratory

relief action, because Appellees did not seek any declaration regarding those rights

or identities. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

                                          4
(“Only disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.”). Rather,

those rights and identities present a legal and factual question, respectively, that

must be adjudicated as the result of the district court’s judgment.

4.    Appellants’ final argument asserts that summary judgment was improper

because a genuine issue of fact exists regarding the rights held by Barkett or

Barkett-related entities. Appellants presented no evidence to the district court to

rebut Appellees’ evidence and create a genuine issue on this point. The district

court therefore did not err by entering summary judgment. Celotex Corp., 477

U.S. at 322.

      AFFIRMED.




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