                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 7 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

In the Matter of: R&S ST. ROSE                  No.    15-15662
LENDERS, LLC,
                                                D.C. No. 2:14-cv-00926-GMN
             Debtor,
______________________________
                                                MEMORANDUM*
BRANCH BANKING AND TRUST
COMPANY,

                Plaintiff-Appellee,

 v.

CREDITOR GROUP,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Gloria M. Navarro, Chief Judge, Presiding

                       Argued and Submitted April 20, 2017
                         Resubmitted September 4, 2018
                            San Francisco, California

Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and BAYLSON,**
District Judge.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
         This is an appeal from the District of Nevada’s reversal of a Bankruptcy

Court’s decision to dismiss a Proof of Claim on res judicata grounds. Appellant

seeks reversal of the District Court’s decision, and, by extension, reinstatement of

the Bankruptcy Court’s decision. We agree with the District Court that the Proof

of Claim is not barred from re-litigation, and find that the District Court correctly

reversed the Bankruptcy Court’s decision. Reviewing the district court’s

determination de novo, we AFFIRM.

    I.      Factual History

         R&S St. Rose Lenders, LLC (“R&S”) was formed to enter a land-banking

arrangement with a real estate developer, Centex homes. R&S was to purchase

undeveloped land (“the Property”), and Centex was to have the option to buy that

land after one year. The managers of R&S formed another entity, St. Rose Lenders

(referred to herein as “Debtor”),1 in order to solicit funds from private investors to

cover a portion of the purchase price of the Property.

         R&S secured funding to purchase the Property in part through two loans: (1)

a loan from Colonial Bank secured by a first-priority deed of trust against the

Property (“2005 Colonial DOT”) and (2) a promissory note payable to Debtor

secured by a deed of trust (“2005 Debtor DOT”). Centex later declined to exercise

its option to buy the property, so R&S secured another loan from Colonial in order

1
 St. Rose Lenders borrowed funds from private lenders, including Robert E. Murdock, and
Eckley M. Keach, in order to cover part of the purchase price of the Property.

                                             2
to retain the Property (“2007 Colonial DOT”). Using the funds from the 2007

Colonial DOT, R&S paid off the 2005 Colonial DOT only. R&S defaulted on the

2005 Debtor DOT and the 2007 Colonial DOT, and both Colonial and Debtor

moved to foreclose on the property. Simultaneously, Colonial filed an action in

Nevada State Court (“State Court Action”) asserting that the 2007 Colonial DOT

was superior to the 2005 Debtor DOT in priority. The judge in the State Court

Action put a temporary restraining order in place to prevent either party from

moving forward with the foreclosure proceedings, pending the outcome of the

State Court Action determining the priority of the two loans.

   II.     Procedural History

           a. State Court Action

         After Colonial Bank commenced the State Court Action, Colonial Bank

went out of business and the FDIC became its receiver. Branch Banking and Trust

Co. (“BB&T”) entered into a Purchase and Assumption Agreement to obtain the

assets of Colonial Bank. BB&T filed an Amended Complaint in place of Colonial

Bank in the State Court Action to pursue Colonial’s claims, asserting itself as

Colonial’s successor in interest. In its Amended Complaint, BB&T advanced six

causes of action to seek priority of the 2007 Colonial DOT over the 2005 Debtor

DOT: two declaratory judgment claims, one promissory estoppel claim, one unjust

enrichment claim, one claim of fraudulent misrepresentation, and one civil



                                          3
conspiracy claim. The crux of the fraudulent misrepresentation and civil

conspiracy claims was BB&T’s allegation that the principals of R&S had

represented to Colonial Bank that they would re-convey the 2005 Debtor DOT so

that the 2007 Colonial DOT would be superior to the 2005 Debtor DOT. All six

claims sought the same remedy – an order establishing that the 2007 Colonial DOT

was superior in priority to the 2005 Debtor DOT so that BB&T could foreclose on

the property.

      The parties agreed to first hold a non-jury trial on BB&T’s declaratory

judgment claims, and delay consideration of the fraudulent misrepresentation and

civil conspiracy claims. In June 2010, after a ten day trial on BB&T’s first four

claims, the Nevada trial court found in favor of Debtor. Murdock v. Rad, et al.,

No. A574852, 2010 WL 9564700 (Nev. Dist. Ct. June 18, 2010). Specifically, the

court held that the only evidence that BB&T submitted to demonstrate that it was

the successor in interest to Colonial, the Purchase and Assumption Agreement, was

insufficient for that purpose.

      BB&T [ ] relied upon the language of the Purchase and Assumption
      Agreement, and no other admissible evidence, documentary or testimonial.
      The court hereby finds that [ ] the Purchase and Assumption Agreement was
      not sufficient evidence, on its face, to establish that BB&T was assigned the
      2007 Colonial Bank Deed of Trust.

Id. at 7. As a result of this factual finding, the trial court concluded that “BB&T

has not demonstrated that it has been assigned the interest in the 2007 Colonial



                                          4
Bank Deed of Trust at issue and therefore has not shown it has the ability to assert

the claims . . . filed by Colonial Bank.” Id. at 25. Because BB&T had not met its

evidentiary burden to prove it was the successor in interest to Colonial, the trial

court held, BB&T could not assert Colonial’s claims. Following this holding,

BB&T filed a motion to voluntarily dismiss its fraudulent misrepresentation and

civil conspiracy claims, which the trial court granted, so that it could appeal the

trial court’s decision as a final order. On appeal, in May 2013, the Nevada

Supreme Court affirmed the decision of the trial court. R&S St. Rose Lenders,

LLC v. Branch Banking and Trust Co. et al., No. 56640, 2013 WL 3357064 (Nev.

May 31, 2013). In February 2014, the Nevada Supreme Court denied rehearing en

banc. R&S St. Rose Lenders, LLC v. Branch Banking and Trust Co. et al., No.

56640, Order Denying en banc Reconsideration (Nev. February 21, 2014).

          b. Bankruptcy Court Decision and District Court Appeal

      While BB&T’s appeal to the Nevada Supreme Court was pending, Debtor

filed for Chapter 11 relief with the Bankruptcy Court for the District of Nevada. In

that action, BB&T filed Proof of Claim 43 (“POC 43”), stating a claim of $38

million dollars. In POC 43, BB&T referenced the pending appeal with the Nevada

Supreme Court, and asserted the superiority of the 2007 Colonial DOT over the

2005 Debtor DOT, alleging “fraud” and “conspiracy” as the basis for their Claim.

Appellant Creditor Group filed an objection to BB&T’s POC, asserting that the



                                           5
POC was barred on claim preclusion and issue preclusion grounds as a result of the

decision in the State Court Action. The Bankruptcy Court agreed with the Creditor

Group, and dismissed the POC in June 2014 on res judicata grounds. In re: R & S

St. Rose Lenders, LLC, No. 11-14973-MKN, ECF 365, Order on Object. (Bankr.

D. Nev. June 3, 2014). BB&T appealed to the District of Nevada. The District

Court reversed the Bankruptcy Court’s decision. Branch Banking and Trust

Company v. Creditor Group, No. 2:14-CV-926-GMN, 2015 WL 1470692 (D.

Nev., March 30, 2015). The Creditor Group filed this timely appeal.

   III.     Statement of Issues Presented

        Appellant seeks reversal of the District Court’s decision, and by extension,

reinstatement of the Bankruptcy Court’s decision. Appellant advances three main

arguments on appeal: (1) POC 43 is barred by issue preclusion (2) POC 43 is

barred by claim preclusion, and (3) POC 43 is legally insufficient.

   IV.      Jurisdiction

        The District Court had jurisdiction to review the Bankruptcy Court’s

decision under 28 U.S.C. § 158(a)(1). This Court has jurisdiction under 28 U.S.C.

§ 158(d).

   V.       Standard of Review

        We review the District Court’s decision de novo. In re Am. W. Airlines,

Inc., 217 F.3d 1161, 1163 (9th Cir. 2000). More specifically, we consider the



                                           6
Bankruptcy Court’s decision independently of the District Court’s review, and

review the Bankruptcy Court’s findings of fact for clear error and its conclusions

of law de novo. Id.

   VI.    Discussion

      1. Applicable Law

      Under the Full Faith and Credit Act, a federal court must give a state-court

judgment the same preclusive effect as it would be given under the law of the state

in which the judgment was rendered. 28 U.S.C. § 1738; Holcombe v. Hosmer, 477

F.3d 1094, 1097 (9th Cir. 2007); see also In re Baldwin, 249 F.3d 912, 917 (9th

Cir. 2001) (applying same rule in bankruptcy context). Accordingly, Nevada law

concerning the preclusive effect of prior judgments applies to the Nevada state

court judgment in this case. Holcombe, 477 F.3d. at 1097.

      There are two preclusion doctrines at issue in this case: claim preclusion and

issue preclusion. Many courts refer to these two doctrines together as res judicata.

Taylor v. Sturgell, 553 U.S. 880, 892 (2008); Univ. of Nevada v. Tarkanian, 879

P.2d 1180, 1191 (Nev. 1994). The Nevada Supreme Court has made clear that

issue preclusion and claim preclusion are distinct from each other, and should not

be conflated. Five Star Capital Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008).

Though both may be applicable to the same case, they are analytically separate. Id.

at 712.



                                         7
       Under Nevada law, issue preclusion applies when: “(1) [the] issue [is]

identical [to the issue decided in the prior litigation], (2) the initial ruling was final

and on the merits, (3) the party against whom the judgment is asserted was a party

or in privity with a party in the prior case, and (4) the issue was actually and

necessarily litigated.” Bower v. Harrah’s Laughlin, Inc., 215 P.3d 709, 718 (Nev.

2009) (internal quotations omitted). If all four factors are met, issue preclusion

prevents re-litigation of the already-decided issue, even when the later litigation is

based on different causes of action or different situations. In re Sandoval, 232 P.3d

422, 423 (Nev. 2010).

       Claim preclusion applies when: “(1) the parties or their privies are the same,

(2) the final judgment is valid, and (3) the subsequent action is based on the same

claims or any part of them that were or could have been brought in the first case.”

Five Star, 194 P.3d at 713. Unlike issue preclusion, which only applies to issues

that were actually and necessarily litigated, claim preclusion applies to all claims

that were raised or could have been raised in the initial case. Id.

       2. Decisions Below

              a. Bankruptcy Court’s Decision

       In its objection to the proof of claim, the Creditor Group argued that the

POC was barred by both claim preclusion and issue preclusion – without clearly

distinguishing between these two doctrines. In assessing the merits of the Creditor



                                            8
Group’s arguments, the Bankruptcy Court first recited the applicable standards

under issue preclusion and claim preclusion. In re: R & S St. Rose Lenders, LLC,

No. 11-14973-MKN, 11-12 (Bankr. D. Nev, June 3, 2014). Then, without clearly

articulating the basis for its decision, but suggesting that it was relying on the issue

preclusion doctrine, the Bankruptcy Court held that the POC was barred because

the merits of the fraud and conspiracy claims had already been decided in the State

Court Action. Id. at 13. The Bankruptcy Court avoided a clear decision on claim

preclusion and thereby avoided an analysis of the effectiveness of the assignment

of claims from Colonial Bank to BB&T. Id.

             b. District Court’s Decision

      The District Court reversed the Bankruptcy Court’s decision regarding issue

preclusion, holding that the Nevada State Court and Nevada Supreme Court had

based their decision on standing, and did not reach a merits decision regarding

fraud or conspiracy. Branch Banking and Trust Company v. Creditor Group, No.

2:14-CV-926-GMN, 2015 WL 1470692, *4 (D. Nev., March 30, 2015). The

District Court did not address the Creditor Group’s argument that BB&T’s Proof

of Claim was barred by claim preclusion. Id. at 2 n. 1. In declining to do so, the

District Court noted that the basis for the Bankruptcy Court’s decision was not

entirely clear, and also noted that the Creditor Group seemed to have abandoned




                                           9
their claim preclusion argument on appeal. Id. As a result, the District Court did

not analyze whether claim preclusion applies to bar POC 43.

      3. Analysis

             a. Issue Preclusion

      The Creditor Group and BB&T disagree about whether the fourth element of

the issue preclusion doctrine has been satisfied – that is, whether the common issue

was “actually and necessarily litigated in” the previous action. Five Star, 194 P.3d

at 711. In evaluating whether an issue was “actually and necessarily litigated,”

“actually” refers to the issue having been properly raised and submitted for

determination in the prior suit, and “necessarily” refers to the issue having been

necessary to the judgment in the prior suit. See Frei ex rel. Litem v. Goodsell, 305

P.3d 70, 72 (Nev. 2013); see also Alcantara ex rel. Alcantara v. Wal-Mart Stores,

Inc., 321 P.3d 912, 918 (Nev. 2014). The Creditor Group argues that in the State

Court Action, the judge found that no misrepresentation had been made to

Colonial. As a result, the Creditor Group argues, that issue was litigated and

decided in the State Court Action, and cannot be re-litigated again in this

bankruptcy proceeding. Because BB&T’s POC relies on alleged

misrepresentations made to Colonial, the Creditor Group argues that the POC is

barred by issue preclusion. BB&T argues that while the State Court judge might

have made findings related to misrepresentations, this issue was not “actually and



                                         10
necessarily litigated” because the actual basis for the State Court decision was the

judge’s finding that BB&T did not prove that it was the successor in interest to

Colonial, and therefore that it could not assert Colonial’s claims.

      We agree with the District Court that issue preclusion does not apply to

prevent BB&T from asserting its POC with the Bankruptcy Court. The issue here

– whether misrepresentations were made to Colonial – may have been litigated, but

a determination on that issue was not necessary to the Nevada trial court’s

judgment.2 The Nevada trial court clearly held BB&T was not permitted to bring

claims on behalf of Colonial because BB&T failed to submit sufficient evidence to

establish that it was Colonial’s successor in interest. Murdock v. Rad, et al., No.

11- A574852, 7 (Nev. Dist. Ct., June 18, 2010). The Nevada Supreme Court

affirmed the trial court’s decision on the same basis, agreeing that the evidence

submitted and accepted by the Nevada trial court did not establish that BB&T

owned the claims it was asserting. R&S St. Rose Lenders, LLC v. Branch Banking

and Trust Co. et al., No. 56640, Order of Affirmance at 6 (Nev. May 31, 2013).


2
  Indeed, there is some question as to whether the issue was “actually litigated” or
“properly raised and submitted for determination” at all. Frei ex rel. Litem, 305
P.3d at 72. That is, the parties agreed to delay an evidentiary hearing regarding
BB&T’s fraudulent misrepresentation and civil conspiracy claims. Though
testimony relevant to this issue was nevertheless elicited during the hearing, it is
not clear that this was proper or that the issues were “submitted for determination.”
Id.



                                          11
      As a result, to the extent that the Nevada trial court examined the merits of

any of BB&T’s claims, its determinations on those substantive issues were not

necessary in reaching its decision. Regardless of what conclusions the court

reached on those issues, it would not have changed the outcome of its decision.

Therefore, although the Nevada trial court’s decision includes a finding that no

misrepresentations had been made to Colonial, that finding does not relate to

whether BB&T submitted sufficient evidence to show that it was the successor in

interest to Colonial, which was the sole basis for the Nevada trial court’s decision.

Accordingly, that finding has no preclusive effect in this bankruptcy proceeding.3

             b. Claim Preclusion

      The Creditor Group argues that even if issue preclusion does not apply here,

claim preclusion bars POC 43. BB&T argues that this Court should not address

this argument, because the District Court did not address it. The applicable

standard of review, however, is for this Court to consider the Bankruptcy Court’s

decision independent of the District Court’s decision, because this Court is in as

good of a position to review the Bankruptcy Court’s decision as was the District

Court. In re Am. W. Airlines, Inc., 217 F.3d at 1163. Therefore, it is appropriate


3
  This interpretation accords with Branch Banking and Trust Co. v. D.M.S.I., LLC,
871 F.3d 751, 760–61 (9th Cir. 2017), in which we stated that the same Nevada
state court decisions were “evidentiary” rulings that the materials BB&T submitted
did not “show assignment of a loan.”

                                         12
for the panel to consider Appellant’s argument that POC 43 is barred by the claim

preclusion doctrine.

          As stated above, claim preclusion applies where (1) the parties are the same

in both lawsuits, (2) the earlier lawsuit resulted in a valid final judgment, and (3)

the claims raised in the later lawsuit were raised or could have been raised in the

earlier lawsuit. Five Star, 194 P.3d at 713. The first and third elements of the test

are not seriously disputed here. Indeed, the crux of the parties’ dispute is whether

the State Court Action resulted in a valid final judgment so as to have preclusive

effect.

          Without citing any law, the Creditor Group argues that the Nevada trial

court’s determination that BB&T had not met its evidentiary burden to show that it

owned the claims it was asserting, coupled with BB&T’s voluntary dismissal of its

fraudulent transfer and civil conspiracy claim, constitutes a final judgment on the

merits. BB&T argues that POC 43 is not barred by claim preclusion because

voluntary dismissal is not a final judgment on the merits.

          We agree with BB&T. Under Nevada law, “a valid final judgment . . . does

not include a case that was dismissed without prejudice or for some reason

(jurisdiction, venue, failure to join a party) that is not meant to have preclusive

effect.” Five Star, 194 P.3d at 713 n.27 (emphasis added) (citing Restatement (2d)

of Judgments §§ 19, 20.). Here, the Nevada trial court granted BB&T’s voluntary



                                            13
motion to dismiss its fraudulent misrepresentation and civil conspiracy claims.

Because the order of dismissal does not indicate otherwise, the Nevada trial court

dismissed these two claims without prejudice. Nev. R. Civ. P. 41(a)(2) (“Unless

otherwise specified in the order, a dismissal [by order of the court] is without

prejudice.”). Accordingly, the dismissal does not constitute a valid final judgment

to preclude BB&T’s similar claims of “fraud” and “conspiracy” as the basis for

POC 43. Five Star, 194 P.3d at 713 n.27.

             c. Merits of Proof of Claim

      As an alternative to its issue preclusion and claim preclusion arguments,

Creditor Group asks this Court to hold that BB&T’s Proof of Claim is legally

insufficient. The merits of POC 43 were not considered by the Bankruptcy Court

or the District Court, and the record on the substantive issues is not fully

developed. It would be inappropriate to consider the merits of POC 43 for the first

time on appeal, given the lack of record development, and because there is no

exceptional circumstance that would allow this Court to do so. Wright v.

Riveland, 219 F.3d 905, 913 n. 5 (9th Cir. 2000).


   VII. Conclusion

      The judgment of the District Court is AFFIRMED and the case is

REMANDED to the Bankruptcy Court for further proceedings, including

consideration of the merits of POC 43.


                                          14
