Gladys Jahn v. Caliber Home Loans, Inc. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLADYS JAHN; TIMOTHY BUSH, No. 19-17198
Plaintiffs-Appellants, D.C. No. 2:18-cv-02244-DLR
v.
MEMORANDUM*
CALIBER HOME LOANS, INC., a foreign
corporation, individually and as a servicer of
LSF9 Master Participation Trust; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Gladys Jahn and Timothy Bush appeal pro se from the district court’s
summary judgment in their action arising out of foreclosure proceedings on their
property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
*
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).
Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011). We affirm.
The district court properly granted summary judgment because there is no
wrongful foreclosure claim under Arizona law, and even if this claim were
cognizable, plaintiffs failed to raise a genuine dispute of material fact as to whether
defendants were required to present the original note before commencing
foreclosure proceedings. See Ariz. Rev. Stat. Ann. § 33-807 (setting forth
requirements for commencing foreclosure proceedings); Zadrozny v. Bank of N.Y.
Mellon, 720 F.3d 1163, 1169 (9th Cir. 2013) (“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 nonjudicial foreclosure.”); In re Vasquez, 266 P.3d
1053, 1055 (Ariz. 2011) (Arizona law “does not require that an assignment of a
deed of trust be recorded before recording the notice of trustee’s sale”); see also
Zubia v. Shapiro, 408 P.3d 1248, 1253 (Ariz. 2018) (“Although we do not preclude
the possibility that Arizona may recognize a cause of action for wrongful
foreclosure in the future, we do not do so here.”).
The district court did not abuse its discretion in admitting into evidence and
considering defendants’ exhibits offered in support of their motion for summary
judgment. See Block v. City of Los Angeles, 253 F.3d 410, 416-419 (9th Cir. 2001)
(“To survive summary judgment, a party does not necessarily have to produce
evidence in a form that would be admissible at trial, as long as the party satisfies
2 19-17198
the requirements of Federal Rules of Civil Procedure 56.”); see also Fed. R. Civ. P.
56(c)(4) (setting forth standard of review and requirements for a declaration used
to support summary judgment motion); Fed. R. Evid. 803(6) (admissibility of
business records); Fed. R. Evid. 803 (14) and (15) (admissibility of public records
affecting interest in property).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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