                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 30 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



COLLINS DEVELOPMENT, INC.                        No. 10-16201
      Plaintiff - Appellee,
                                                 D.C. No. 2:09-cv-00427-RCJ-RJJ
  v.

FEDERAL DEPOSIT INSURANCE                        MEMORANDUM *
CORPORATION, AS RECEIVER FOR
SILVER STATE BANK,
      Defendant - Appellant.



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

                        Argued and Submitted June 13, 2011
                            San Francisco, California

Before: O’SCANNLAIN and BYBEE, Circuit Judges, and HAYES,** District
Judge.

       Federal Deposit Insurance Corporation (“FDIC”), as receiver for Silver State

Bank, appeals the grant of summary judgment in favor of Collins Development



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **   The Honorable William Q. Hayes, United States District Judge for the
Southern District of California, sitting by designation.
(“Collins”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de

novo. See Trs. of Constr. Indus. & Laborers Health & Welfare Trust v. Hartford

Fire Ins. Co., 578 F.3d 1126, 1128-29 (9th Cir. 2009).

      Even if Collins had a mechanic’s lien which attached prior to the date of

receivership, due to Collins’s failure to comply with the perfection requirements in

section 108.226 of the Nevada Revised Statutes, this lien was “invalid as a matter

of law,” and Collins was not entitled “‘to any benefits occasioned by its existence’”

as of the date of receivership. Schofield v. Copeland Lumber Yards, Inc., 692 P.2d

519, 520-21 (Nev. 1985) (quoting Fisher Bros., Inc. v. Harrah Realty Co., 545

P.2d 203, 204 (Nev. 1976)). Pursuant to Nevada law, Collins was not entitled to

any benefits—including priority status—from its mechanic’s lien on the real

property at issue as of the date of receivership.

      After the date of receivership, Collins was not permitted to perfect because a

creditor may not improve its position post-receivership pursuant to the Financial

Institutions Reform and Recovery Enforcement Act (“FIRREA”). See 12 U.S.C. §

1825(b)(2) (“When acting as a receiver . . . [n]o property of the Corporation shall

be subject to levy, attachment, garnishment, foreclosure, or sale without the

consent of the Corporation, nor shall any involuntary lien attach to the property of

the Corporation.”); 12 U.S.C. § 1821(d)(13)(C) (“No attachment or execution may


                                           2
issue by any court upon assets in the possession of the receiver.”); cf. First Empire

Bank-New York v. FDIC, 634 F.2d 1222, 1225 (9th Cir. 1980) (stating that, as

between a creditor and the FDIC acting as receiver for an insolvent bank, “[t]he

rights of the parties become fixed as of the date of [the bank’s] insolvency” (citing

Scott v. Armstrong, 146 U.S. 499, 510 (1892))). The district court did not have

authority to lift FIRREA’s bar on recordation nunc pro tunc and declare Collins’s

lien to be perfected, valid, and enforceable.

      We reverse summary judgment for Collins and remand for further

proceedings.

      REVERSED and REMANDED.




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