Helen Reader v. Bank of America Na , 582 F. App'x 719 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 7 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HELEN E. READER, No. 12-15205
Plaintiff - Appellant, D.C. No. 2:11-cv-02461-FJM
v.
MEMORANDUM*
BANK OF AMERICA, NA, a Texas
limited partnership, successor in interest to
BAC Home Loans Servicing LP; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
Helen E. Reader appeals pro se from the district court’s judgment dismissing
her action arising from foreclosure proceedings. We have jurisdiction under 28
U.S.C. § 1291. We review de novo. Cervantes v. Countrywide Home Loans, Inc.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
656 F.3d 1034, 1040 (9th Cir. 2011). We affirm in part, vacate in part, and
remand.
The district court properly denied Reader’s motion to remand because the
district court had diversity jurisdiction and defendants timely removed. See 28
U.S.C. § 1332(a) (diversity jurisdiction); Destfino v. Reiswig, 630 F.3d 952, 955-
56 (9th Cir. 2011) (setting forth standard of review and holding that each defendant
is entitled to thirty days to exercise his removal rights after being served).
The district court properly dismissed Reader’s claims for wrongful
foreclosure and tortious interference with enjoyment of property, and her request
for a declaratory judgment, because her allegations did not “plausibly suggest an
entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); see also
Cervantes, 656 F.3d at 1043-44 (explaining that “Arizona state courts have not yet
recognized a wrongful foreclosure cause of action,” and in states that do recognize
such claims, they typically are available only after foreclosure and are premised on
allegations that the borrower was not in default).
The district court properly dismissed Reader’s claim for “breach of the deed
of trust contract” because documents referred to in the complaint showed that
defendants complied with the provision requiring notice prior to acceleration. See
Chartone, Inc. v. Bernini, 83 P.3d 1103, 1111 (Ariz. Ct. App. 2004) (elements of
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breach of contract under Arizona law); see also Knievel v. ESPN, 393 F.3d 1068,
1076 (9th Cir. 2005) (court may consider documents not physically attached to the
plaintiff’s pleading whose contents are alleged in the complaint and whose
authenticity no party questions).
The district court properly dismissed Reader’s quiet title claim because
Reader failed to allege facts showing that the loan has been repaid. See Farrell v.
West, 114 P.2d 910, 911 (Ariz. 1941) (where “it appears there is an unsatisfied
balance due to a defendant-mortgagee, or his assignee, the court will not quiet the
title until and unless [plaintiff] pays off such mortgage lien”).
However, after the district court dismissed Reader’s claims for promissory
estoppel, in which Reader alleged breach of a promise to offer a permanent loan
modification after she made trial payments, we held that a bank may be
contractually obligated to offer a permanent loan modification to a borrower who
made trial payments. See Corvello v. Wells Fargo Bank, NA, 728 F.3d 878, 883-84
(9th Cir. 2013) (per curiam). Because the district court did not have the benefit of
Corvello when it issued its order of dismissal, we vacate and remand to allow the
court to reconsider Reader’s claims for promissory estoppel.
We also vacate and remand Reader’s claim for violation of Ariz. Rev. Stat.
§ 33-420 to allow the court to reconsider it in light of intervening state case law.
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See Sitton v. Deutsche Bank Nat’l Trust Co., 311 P.3d 237, 240-41 (Ariz. Ct. App.
2013) (holding that property owner had standing under Ariz. Rev. Stat. § 33-420and that the allegedly false documents fell within the statute’s scope); Stauffer v.
U.S. Bank Nat’l Ass’n, 308 P.3d 1173, 1176-77, 1179 (Ariz. Ct. App. 2013)
(same).
Finally, we vacate and remand Reader’s claim for an injunction against the
trustee’s sale under Ariz. Rev. Stat. § 33-811(C) in light of our decision to remand
some of her other claims. See Ariz. Rev. Stat. § 33-811(C) (defenses and
objections to a trustee’s sale are waived if they are not raised in an action resulting
in injunctive relief before the sale).
Reader’s motion to file an oversized exhibit, filed on August 30, 2012, is
denied.
Defendants’ request to strike the portion of Reader’s opening brief inserting
alleged images from a home loan help website, set forth in their answering brief, is
granted.
Each party shall bear its own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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