Gary Gosha v. Bank of New York Mellon Corp. , 707 F. App'x 484 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY C. GOSHA, an individual and No. 17-35236
together as husband and wife; KIT M.
GOSHA, an individual, and together as D.C. No. 3:16-cv-00073-BR
husband and wife,
Plaintiffs-Appellants, MEMORANDUM*
v.
BANK OF NEW YORK MELLON CORP.,
FKA Bank of New York, As Trustee
(CWALT 2005-72), Delaware Corporation;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Gary C. Gosha and Kit M. Gosha appeal pro se from the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment dismissing their action alleging federal and state law claims related to
foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a dismissal under Fed. R. Civ. P. 12(b)(6). See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). We may
affirm on any basis supported by the record. Shanks v. Dressel, 540 F.3d 1082,
1086 (9th Cir. 2008). We affirm.
The district court properly dismissed the Goshas’ claims arising from their
contention that their mortgage lender was a non-existent entity because the note
and trust deed unambiguously identified the lender and documents subject to
judicial notice showed that the lender was registered in Oregon when the Goshas
entered into their loan transaction. See Lee v. City of Los Angeles, 250 F.3d 668,
688-89 (9th Cir. 2001) (describing documents that a district court may take judicial
notice of when ruling on a Rule 12(b)(6) motion); Eagle Indust., Inc. v. Thompson,
900 P.2d 475, 479 (Or. 1995) (absent ambiguity, “the court construes the words of
a contract as a matter of law”).
The district court properly dismissed the Goshas’ claim for promissory
estoppel because the Goshas failed to allege facts sufficient to show that Bank of
America, N.A. made a representation reasonably expected to “induce action or
forebearance on the part of [the Goshas].” Cocchiara v. Lithia Motors, Inc., 297
P.3d 1277, 1283 (Or. 2013).
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Dismissal of the Goshas’ Unlawful Trade Practices Act (“UTPA”) claim
arising from Bayview Loan Servicing, LLC’s alleged misconduct during the
Oregon Foreclosure Avoidance Program was proper because the Goshas failed to
allege facts sufficient to “state a claim that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009) (explaining that “[a] pleading that offers labels
and conclusions” or “naked assertions devoid of further factual enhancement” is
insufficient to survive a motion to dismiss (citation and internal quotation marks
omitted)); Feitler v. Animation Celection, Inc., 13 P.3d 1044, 1047 (Or. Ct.
App. 2000) (elements of UTPA claim).
The district court did not abuse its discretion by denying the Goshas leave to
file a third amended complaint because further amendment would be futile. See
Cervantes, 656 F.3d at 1041 (setting forth standard of review and explaining that
dismissal without leave to amend is proper when amendment would be futile);
Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district
court has already granted a plaintiff leave to amend, its discretion in deciding
subsequent motions to amend is particularly broad.” (citation and internal
quotation marks omitted)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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