Anthony Adrian v. Federal National Mortgage Asso , 557 F. App'x 652 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 31 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ANTHONY AND MARIA ADRIAN, No. 12-16214
Plaintiffs-Appellants, D.C. No. 2:12-CV-00189-PHX-
FJM
v.
FEDERAL NATIONAL MORTGAGE MEMORANDUM*
ASSOCIATION, MTC FINANCIAL
(d/b/a Trustee Corps), and ONEWEST
BANK, FSB,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted December 5, 2013
San Francisco, California
Before: GOULD and PAEZ, Circuit Judges, and EZRA, District Judge.**
Appellants Anthony and Maria Adrian (“the Adrians”) appeal the district
court’s dismissal of their claims without granting leave to amend. The Adrians
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
asserted three claims against Defendants Federal National Mortgage Association
(“Fannie Mae”), MTC Financial (d/b/a Trustee Corps) (“Trustee Corps”), and
OneWest Bank, FSB (“OneWest”): (1) wrongful foreclosure, (2) intentional
infliction of emotional distress, and (3) fraud. We have jurisdiction pursuant to 28
U.S.C. 1291. We affirm in part, vacate in part, and remand.
I.
The Adrians argue that the district court erred in dismissing their claims
without granting them leave to amend. A district court’s denial of leave to amend
the complaint is reviewed for an abuse of discretion. Gardner v. Martino, 563 F.3d
981, 990 (9th Cir. 2009) (citing Westlands Water Dist. v. Firebaugh Canal, 10 F.3d
667, 677 (9th Cir. 1993)). Because the district court did not articulate its reasons
for denying the Adrians leave to amend their claims against Fannie Mae and
OneWest, we review each of the Adrians’ claims de novo to determine whether the
district court abused its discretion in denying leave to amend. DCD Programs, Ltd.
v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1051–52 (9th Cir. 2003)(per curiam).
The Adrians first allege a claim of wrongful foreclosure. Arizona state
courts do not recognize a wrongful foreclosure cause of action. See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1043 (9th Cir. 2011). The Adrians
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attempt to distinguish their wrongful foreclosure claim, but we find their attempts
unavailing. Thus, any amendment to the Adrians’ wrongful foreclosure action
would be futile and the district court did not err in dismissing that claim and
denying leave to amend.
The Adrians also allege a claim of intentional infliction of emotional
distress. In order to state a claim for intentional infliction of emotional distress
under Arizona law, the Adrians must show that (1) the conduct at issue was
“extreme and outrageous,” (2) the defendants either intended to cause such distress
or recklessly disregarded the likelihood that such distress would occur, and (3)
severe emotional distress did occur. Watts v. Golden Age Nursing Home, 619
P.2d 1032, 1035 (Ariz. 1980). We previously have held that the actions of lenders
in “targeting Plaintiffs for a loan, misrepresenting the terms and conditions of the
loan, negotiating the loan, and closing the loan,” do not rise to the level of
“extreme and outrageous.” Cervantes, 656 F.3d at 1046. Thus, even taking all the
facts alleged as true, any amendment to the Adrians’ intentional infliction of
emotional distress claim would be futile because the alleged conduct of the
defendants does not, as a matter of law, rise to the level of “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
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community.” Watts, 619 P.2d at 1035. Therefore, the district court did not err in
dismissing that claim and denying leave to amend.
Finally, the Adrians allege fraud against Fannie Mae and OneWest.
However, they fail to allege any specific conduct of Fannie Mae that would
constitute fraud and merely assert that Fannie Mae was a co-conspirator to
OneWest’s fraudulent actions. Under Arizona law, for a conspiracy action to lie,
“two or more people must agree to accomplish an unlawful purpose or to
accomplish a lawful object by unlawful means, causing damages.” See Wells
Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395
Pension Trust Fund, 38 P.3d 12, 36 (Ariz. 2002). Merely alleging that Fannie Mae
was a co-conspirator is insufficient and the underlying facts demonstrate that any
amendment to the Adrians’ fraud claim against Fannie Mae under a “co-
conspiratory” theory would be futile. Thus, the district court did not err in denying
the Adrians leave to amend that claim.
The record, however, suggests that the Adrians’ fraud claim against
OneWest could be saved by amendment. The Adrians’ fraud claim against
OneWest, in sum, alleged that OneWest “represented” to Plaintiffs that they must
default on their mortgage before OneWest would modify it, but that OneWest had
no intention of ever modifying the loan. Instead, according to the Adrians,
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OneWest falsely represented to them that they must default, while OneWest “fully
intended on foreclosing on the Property” and sought to obtain loan modification
incentives in the process. Assuming that these allegations are true, it appears that
the Adrians could potentially state a claim for fraud against OneWest. See
Cervantes, 656 F.3d at 1041. At a minimum, it is not clear that an amendment to
their pleadings would be futile. Accordingly, we hold that the district court abused
its discretion in denying the Adrians an opportunity to amend their complaint with
respect to their allegations of fraud against OneWest.
II.
The Adrians also argue the district court abused its discretion when it
disposed of their claims against Trustee Corps by granting Trustee Corps’s Motion
to Dismiss “summarily” pursuant to Local Rule 7.2(i). The Adrians did not
respond to Trustee Corps’s Motion to Dismiss. Because Local Rule 7.2(i) allows
the district court to dispose of a motion summarily if the party does not serve and
file the required answering memoranda, we hold that the district court did not
abuse its discretion in summarily disposing of Trustee Corps’s Motion to Dismiss
and dismissing the Adrians’ claims against it. See Ghazali v. Moran, 46 F.3d 52,
54 (9th Cir. 1995).
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We vacate the district court’s judgment of dismissal of the Adrians’ fraud
claim against OneWest and remand to the district court for further proceedings
consistent with this disposition. We affirm the district court’s judgment in all other
respects.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Each party shall bear its own costs on appeal.
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