Bob Hanks v. Christina Harper ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 15 2021
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
BOB L. HANKS, No. 19-17537
Plaintiff-Appellant, D.C. No. 2:19-cv-03174-DLR
v.
CHRISTINA HARPER, trustee of LSF9 MEMORANDUM*
Master Participation Trust; trustee of US
Bank Trust NA; BANK OF AMERICA, by
Caliber Home Loans Incorporated, standing
in the shoes of; MORTGAGE LAW FIRM,
Named as The Mortgage Law Firm; U.S.
BANK TRUST, N.A.; LSF9 MASTER
PARTICIPATION TRUST; CALIBER
HOME LOANS, INC.; BANK OF
AMERICA, NA; FIRST AMERICAN
FINANCIAL CORP., DBA First American
Title Insurance Company; FIRST
AMERICAN TITLE INSURANCE
COMPANY; UNKNOWN PARTIES,
Named as Undisclosed (I-XX),
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted October 13, 2021**
San Francisco, California
*
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).
Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.
Bob Hanks appeals the district court’s dismissal of his claims relating to a
foreclosure proceeding and its denial of his motion for findings of fact and
conclusions of law.1 As the facts are known to the parties, we repeat them only as
necessary to explain our decision.
I
First, Hanks contends that the district court erred in “failing or refusing to
rule on” his motion for findings of fact and conclusions of law under Federal Rule
of Civil Procedure 52(a). Such contention is factually mistaken. The district court
did rule on Hanks’s motion when it denied such motion. It was proper for the
district court to deny Hanks’s motion as premature, given that Rule 52(a) expressly
states that a district court “is not required to state findings or conclusions when
ruling on a motion under Rule 12.” Fed. R. Civ. P. 52(a)(3).
II
Second, the district court properly dismissed Hanks’s fraudulent
concealment claim. Such court aptly noted that Hanks’s complaint did “not allege
1
In his Reply Brief, Hanks also asks this court to review determinations
related to Arizona law made in previous state-court proceedings, including the
Arizona Supreme Court’s denial of further review of his claims. We do not have
appellate jurisdiction over state courts’ decisions. See, e.g., D.C. Ct. of Appeals v.
Feldman, 460 U.S. 462, 486 (1983); Atl. Coast Line R.R. Co. v. Brotherhood of
Locomotive Eng’rs, 398 U.S. 281, 296 (1970).
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with particularity the existence of any actionable concealment by any defendant
that plausibly could have caused [him] injury,” as would be necessary to survive a
motion to dismiss under Fed. R. Civ. P. 9(b). Even liberally construed, Hanks’s
complaint fell short of the “minimum threshold” of “providing . . . defendant[s]
with notice of what it is [they] allegedly did wrong.” Brazil v. U.S. Dep’t of Navy,
66 F.3d 193, 199 (9th Cir. 1995).
III
Finally, Hanks’s slander of title, quiet title, unjust enrichment, and
declaratory judgment claims constitute “objections” to the trustee’s sale within the
meaning of Ariz. Rev. Stat. § 33-811(C) insofar as they are claims which “cannot
succeed unless the sale was defective.” Zubia v. Shapiro, 408 P.3d 1248, 1251
(Ariz. 2018). Under Ariz. Rev. Stat. § 33-811(C), a party who does not
successfully enjoin a trustee’s sale waives any objection to the validity of such
sale. See BT Cap., LLC v. TD Serv. Co. of Ariz., 275 P.3d 598, 600 (Ariz. 2012).
Thus, because Hanks did not successfully enjoin the trustee’s sale, it was proper
for the district court to dismiss his slander of title, quiet title, unjust enrichment,
and declaratory judgment claims as waived by operation of Ariz. Rev. Stat. § 33-
811(C).
AFFIRMED.
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