Jimijack Irrevocable Trust v. Federal National Mortgage Association

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMIJACK IRREVOCABLE TRUST,
Plaintiff-Appellant,
v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendant-Appellee,
and
FIRST AMERICAN TRUSTEE
SERVICING SOLUTIONS LLC,
Defendant.
No. 19-15609
D.C. No.
2:18-cv-01560-JAD-VCF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted April 13, 2021
Pasadena, California
Before: PAEZ and VANDYKE, Circuit Judges, and GLEASON,** District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
FILED
APR 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Jimijack appeals the district court’s dismissal of its action alleging claims
arising from a nonjudicial foreclosure by a homeowners association (“HOA”) of
real property in Nevada. The property was the subject of a quiet title action in
2015, asserted by Jimijack’s predecessor-in-interest. In that action, the district
court entered judgment quieting title in favor of Fannie Mae.
In the present litigation, Jimijack attempted to quiet title against Fannie Mae,
asserting that Fannie Mae could not foreclose on the deed of trust encumbering the
subject property because it was not the owner of the promissory note that was
secured by the deed of trust. The district court dismissed Jimijack’s action, finding
it precluded because Jimijack’s claims arose from the same facts and
circumstances as the prior litigation. We review the application of issue preclusion
and claim preclusion de novo, Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d
741, 745 (9th Cir. 2006), and we affirm.
The preclusive effect of a Nevada judgment is analyzed under Nevada law.
Mack v. Kuckenmeister, 619 F.3d 1010, 1016 (9th Cir. 2010). Under Nevada law,
claim preclusion requires that “(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 Cap. Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008) (en banc). The test for
determining whether the claims, or any part of them, are barred in a subsequent

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action is whether they are “based on the same set of facts and circumstances as the
[initial action].” Id. at 714. Claim preclusion “embraces all grounds of recovery
that were asserted in a suit, as well as those that could have been asserted, and thus
has a broader reach than issue preclusion.” Id. at 712.
First, the parties to the prior action were Fannie Mae and ABS, Jimijack’s
predecessor-in-interest. See id. at 713. Second, although Jimijack disputes the
scope of the district court’s prior judgment, there is no meaningful dispute that it
was not valid. See id. Third, although the legal and factual allegations underlying
Jimijack’s instant quiet title action against FNMA are different from the prior
action, it is based on claims that could have been brought in the prior action. See
id.
Jimijack contests Fannie Mae’s present ownership of the underlying
promissory note. Because the deed of trust is a security interest securing the
underlying promissory note, Jimijack contends that the beneficiary of the deed of
trust must prove ownership of the note—which, it contends, Fannie Mae cannot do.
This claim is barred because it is based on the same facts and circumstances as
ABS’s claims in the prior action. See id. at 714. Even if ABS did not explicitly
assert Jimijack’s current claim in the prior action, it could have been asserted at
that time. The facts pertaining to Fannie Mae’s deed of trust, including its
ownership and possession of the note secured by the deed of trust, were available

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in public records to ABS, Jimijack’s predecessor-in-interest.
Jimijack argues that ABS’s failure to assert the note-ownership claim in the
prior action should not have preclusive effect because it was not a compulsory
claim. It contends that the issue in the prior action was whether the deed of trust
survived the HOA foreclosure sale, and if that issue was resolved in favor of ABS,
then it would not have needed to challenge Fannie Mae’s right to enforce the deed
of trust on the note-ownership ground. But the ripeness or maturity of a claim is
irrelevant to the question of claim preclusion. See Mendenhall v. Tassinari, 403
P.3d 364, 370–71 (Nev. 2017) (rejecting the argument that claim preclusion does
not apply because the claims “had not matured at the time of the responsive
pleadings”). In Nevada, “a claim is compulsory ‘if it arises out of the transaction
or occurrence that is the subject matter of the opposing party’s claim.’” Id. at 370
(quoting Nev. R. Civ. P. 13(a)). “The definition of transaction or occurrence does
not require an identity of factual backgrounds.” Tassinari, 403 P.3d at 370.
Rather, “the relevant consideration is whether the pertinent facts of the different
claims are so logically related that issues of judicial economy and fairness mandate
that all issues be tried in one suit.” Id. at 371.
Jimijack’s note-ownership claim arises out of the viability of Fannie Mae’s
deed of trust interest following the HOA foreclosure sale. The underlying facts of
the prior action are pertinent and related to the instant action such that Jimijack’s

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predecessor-in-interest could have asserted the note-ownership claim in the prior
action. See id. at 370–371; see also Five Star, 194 P.2d at 714. Because it failed
to do so, Jimijack’s claim is precluded.
AFFIRMED.

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