Rocky Coronado v. Capital One Bank Na , 554 F. App'x 549 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCKY AND BRENDA CORONADO, No. 12-15827
Plaintiffs - Appellants, D.C. No. 2:11-CV-02590-ROS
District of Arizona
v.
CHEVY CHASE BANK, FSB, CAPITAL MEMORANDUM*
ONE FINANCIAL CORPORATION,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEM, INC., T.D.
SERVICE COMPANY OF ARIZONA,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted January 17, 2014**
San Francisco, California
Before: WALLACE, BYBEE, Circuit Judges, and GETTLEMAN, District
Judge.***
The Coronados lost their home loan to foreclosure. Their complaint alleges
six claims of relief based on putative flaws in the foreclosure process. The district
court dismissed their complaint with prejudice for failure to state a claim. The
Coronados filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. §
1291, and affirm.
We review de novo the district court’s dismissal for failure to state a claim,
and can affirm on any ground supported by the record. Thompson v. Paul, 547 F.3d
1055, 1058-59 (9th Cir. 2008). We will only reverse if we determine that the
Coronados’ complaint contains specific factual allegations sufficient to raise their
right to relief “above the speculative level,” and establishes claims for relief that
are “plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
**
The panel unanimously concluded this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert W. Gettleman, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
First, the Coronados alleged that the defendants recorded documents
“purporting to claim an interest in” their property that contained false statements,
in violation of Arizona law. Ariz. Rev. Stat. Ann. § 33-420. Although the relevant
documents are covered by the statute, see Stauffer v. U.S. Bank Nat’l Ass’n, 308
P.3d 1173, 1177-78 (Ariz. Ct. App. 2013), we nonetheless affirm because any
misstatements were not material to the Coronados. Sitton v. Deutsche Bank Nat’l
Trust Co., 311 P.3d 237, 243 (Ariz. Ct. App. 2013). The Coronados admit they
“failed to make payments on the note.” They were thus subject to foreclosure “no
matter who was assigned as beneficiary, or when.” Id. at 244. Because TD Service
Company provided “a statement indicating the basis for [its] authority” to
commence the sale, the Coronados are not entitled to relief under Arizona’s false
recording statute. Hogan v. Wash. Mut. Bank, N.A., 277 P.3d 781, 783 (Ariz.
2012).
Second, the district court correctly held that Arizona does not require the
defendants to show authority before foreclosing on a note. See id. at 782(“Arizona’s non-judicial foreclosure statutes do not require the beneficiary to
prove its authority or ‘show the note’ before the trustee may commence a
non-judicial foreclosure”). The trustee foreclosure sale was held under the deed of
trust and was not subject to the Uniform Commercial Code. Id. at 783.
We also affirm the district court’s dismissal of the Coronados’ four other
claims. The Coronados failed to argue that the documents they signed were
adhesion contracts or procedurally unconscionable in their opening brief on appeal,
and have therefore waived those arguments. Eberle v. City of Anaheim, 901 F.2d
814, 817-18 (9th Cir. 1990). As the district court correctly held, lack of standing is
not a cause of action. The dismissal of the Coronados’ consumer fraud claim was
consistent with our precedent. See Cervantes v. Countrywide Home Loans, Inc.,
656 F.3d 1034, 1041-42 (9th Cir. 2011). The district court properly dismissed the
Coronados’ claim for quiet title. Sitton, 311 P.3d at 240 (once “a trustee’s sale is
completed, [a trustor] waives all claims to title of the property”).
District courts have “wide latitude” to deny a hearing. Ortiz v. Stewart, 149
F.3d 923, 934 (9th Cir. 1998). In light of such latitude, we hold that the district
court’s refusal to hold a hearing was not error. Moreover, because any amendment
to the complaint would have been futile, we affirm the district court’s dismissal of
the Coronados’ complaint with prejudice. Cervantes, 656 F.3d at 1042.
Finally, we affirm the district court’s remaining holdings. The motion for an
injunction was properly denied because once a foreclosure sale occurs, all defenses
and objections to that sale are waived unless there was “issuance of a court order
granting relief” before the sale. Ariz. Rev. Stat. Ann. § 33-811(C). The district
court properly awarded attorneys’ fees to TD Service Company, which was
improperly joined. Ariz. Rev. Stat. Ann. § 33-807(E) (“the trustee is entitled to be
immediately dismissed and to recover costs and reasonable attorney fees from the
person joining the trustee” if sued in any action other than one pertaining to a
breach of the trustee’s statutory or trust obligations).
TD Service Company’s motion to strike is granted, and the Coronados’
motion for judicial notice is denied as moot.
AFFIRMED.