Hamed Fathi v. J.P. Morgan Chase Bank, N.A. , 671 F. App'x 990 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HAMED FATHI, No. 14-56251
Plaintiff-Appellant, D.C. No. 3:13-cv-02639-BAS-
RBB
v.
J.P. MORGAN CHASE BANK, N.A.; et MEMORANDUM*
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Hamed Fathi appeals pro se from the district court’s judgment dismissing his
diversity action alleging state law claims arising from foreclosure proceedings. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a 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).
dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6), and we may affirm on any basis supported by the record. Thompson v.
Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
The district court properly dismissed Fathi’s claims against defendant JP
Morgan Chase Bank, N.A. (“Chase”) because Fathi failed to allege facts sufficient
to show that Chase was not a proper party to initiate foreclosure proceedings, and
Fathi lacked standing to bring a preemptive suit to challenge Chase’s authority to
foreclose. See Saterbak v. JPMorgan Chase Bank, N.A., 199 Cal. Rptr. 3d 790,
795 (Ct. App. 2016) (California courts do not allow preemptive suits challenging
the foreclosing party’s authority to foreclose because such suits “would result in
the impermissible interjection of the courts into a nonjudicial scheme enacted by
the California Legislature.” (citation omitted)); Gomes v. Countrywide Home
Lonas, Inc., 121 Cal. Rptr. 3d 819, 824 (Ct. App. 2011) (California law does not
“provide for a judicial action to determine whether the person initiating the
foreclosure process is indeed authorized” absent “a specific factual basis for
alleging that the foreclosure was not initiated by the correct party”); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face” (citation omitted)).
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We do not consider matters not specifically and distinctly raised and argued
in an opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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