                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 05 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LAURA KNIGHT; MARK KNIGHT,                       No.   16-35895

              Plaintiffs-Appellants,             D.C. No. 9:15-cv-00056-DLC

 v.
                                                 MEMORANDUM*
WELLS FARGO BANK, N.A.; HSBC
BANK USA, N.A.,

              Defendants-Appellees.



LAURA KNIGHT; MARK KNIGHT,                       No.   16-35937

              Plaintiffs-Appellees,              D.C. No. 9:15-cv-00056-DLC

 v.

WELLS FARGO BANK, N.A.; HSBC
BANK USA, N.A.,

              Defendants-Appellants.


                    Appeal from the United States District Court
                            for the District of Montana
                    Dana L. Christensen, Chief 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 March 8, 2018
                                Seattle, Washington

Before: RAWLINSON and CHRISTEN, Circuit Judges, and FREUDENTHAL,**
Chief District Judge.

      Appellants/Cross-Appellees Laura Knight and Mark Knight (Knights)

appeal the district court’s order granting judgment on the pleadings on their

negligent misrepresentation, negligence, constructive fraud, and Montana

Consumer Protection Act (MCPA) claims, and the district court’s grant of

summary judgment on their declaratory judgment claim in favor of

Appellees/Cross-Appellants Wells Fargo Bank, N .A. and HSBC Bank USA, N.A.,

(Wells Fargo). The Knights contend that the district court erred in holding that

their claims were barred by the applicable statutes of limitations.

      The district court properly held that the continuing tort doctrine did not toll

the statutes of limitations for the Knights’ negligence, negligent misrepresentation,

constructive fraud, and MCPA claims. The Knights’ tort claims accrued no later

than 2011, based on their allegations that “on January 10, 2011, [they] knew that

they had a foreclosure sale pending within the next few months,” and sent a cease

and desist letter to Wells Fargo “[a]fter conducting research into the issue of Wells



      **
              The Honorable Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
                                           2
Fargo’s rights to foreclose.” The continuing tort doctrine affords no relief from the

statutes of limitation because the Knights were “aware of [their] injuries, of the

cause of those injuries and of the fact that [they] had a cause of action” due to

Wells Fargo’s initiation of foreclosure proceedings. Gomez v. State, 975 P.2d

1258, 1263 (Mont. 1999). Dismissal of their claims was warranted because the

Knights did not file their action until 2015, well beyond the applicable statutes of

limitation. See Mont. Code Ann. § 27-2-203 (establishing a two-year statute of

limitations for claims premised on “fraud or mistake”); Mont. Code Ann. §

27-2-204(1) (establishing a three-year statute of limitations for tort claims “not

founded upon an instrument in writing”); Osterman v. Sears, Roebuck & Co., 80

P.3d 435, 441 (Mont. 2003) (recognizing that a two-year statute of limitations

applies to claims for unfair or deceptive practices).

      The eight-year statute of limitations for contract actions pursuant to Mont.

Code Ann. § 27-2-202(1) does not govern the Knights’ declaratory judgment

claim. The gravamen of the Knights’ complaint is that Wells Fargo engaged in

tortious conduct involving conversion of the deed of trust during the assignment

process. See Tin Cup Cty. Water & Sewer Dist. v. Garden City Plumbing &

Heating, Inc., 200 P.3d 60, 67 (Mont. 2008) (explaining that the eight-year statute

of limitations for contract actions applies “only if the gravamen of [the] complaint


                                           3
sounds in contract”). Interpretation of the deed of trust is unnecessary to resolve

the Knights’ declaratory judgment claim because the Knights do not “point to the

violation of a specific contractual provision” in the deed of trust as required for

their complaint “to sound in contract.” Id. The district court correctly determined

that the three-year statute of limitations for conversion barred the Knights’

declaratory judgment claim based on the gravamen of their complaint. See id.; see

also Mont. Code Ann. § 30-3-122(7) (providing that “an action for conversion of

an instrument . . . must be commenced within 3 years after the cause of action

accrues”).1

      AFFIRMED.




      1
         Because we affirm the district court’s dismissal of the Knights’ claims
based on the statutes of limitations, we need not, and do not, address the alternative
grounds for affirming raised in Wells Fargo’s cross-appeal.
                                           4
