Linda Bryant v. Jpmorgan Chase Bank Na , 671 F. App'x 985 ( 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NOT FOR PUBLICATION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
LINDA KAY BRYANT, No. 14-55299
Plaintiff-Appellant, D.C. No. 2:13-cv-08493-SJO-JEM
v.
MEMORANDUM*
J.P. MORGAN CHASE BANK, N.A. and
NATIONAL DEFAULT SERVICING
CORPORATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Linda Kay Bryant appeals pro se from the district court’s judgment
dismissing her diversity action alleging state law claims arising from foreclosure
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
*
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).
district court’s 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 Bryant’s wrongful foreclosure claim
because Bryant failed to allege facts sufficient to show that JP Morgan Chase
Bank, N.A. (“Chase”) was not a proper party to initiate foreclosure proceedings,
and Bryant 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 reject as without merit Bryant’s contentions that the district court erred
in dismissing her wrongful foreclosure claim based on her theories that the
substitution of trustee was improper, that Chase could not acquire the loan without
a recorded assignment, or that Chase’s failure to file a proof of claim in her petition
for relief under Chapter 7 of the Bankruptcy Code rendered her mortgage loan
unsecured. See Cal. Civ. Code §§ 2934a, 2934, 2936; Yvanova v. New Century
Mortg. Corp., 199 Cal. Rptr. 3d 66, 72-73 (2016) (“The deed of trust . . . is
inseparable from the note it secures, and follows it even without a separate
assignment.”); Johnson v. Home State Bank, 501 U.S. 78, 83 (1991) (“[A]
creditor’s right to foreclose on the mortgage survives or passes through the
bankruptcy.”); Isom v. United States (In re Isom), 901 F.2d 744, 745 (9th Cir.
1990) (bankruptcy discharge prevents a creditor from collecting debt as a personal
liability of the debtor but does not result in release of the lien on secured debt).
The district court properly dismissed Bryant’s quasi-contract claim because
Bryant failed to allege facts sufficient to show that Chase had received an unjust
benefit when she made payments under the loan. See Astiana v. Hain Celestial
Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (the quasi-contract cause of action
provides for restitution of an unjustly received benefit).
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The district court properly dismissed Bryant’s quiet title claim because
Bryant’s theory that the alleged securitization of her loan extinguished her duty to
pay under the loan is not legally cognizable, and Bryant failed to allege facts
sufficient to show that Chase was not the proper beneficiary under the deed of
trust. See City of Santa Maria v. Adam, 149 Cal. Rptr. 3d 491, 517 (Ct. App. 2012)
(“The purpose of a quiet title action is to finally settle and determine the parties’
conflicting claims to the property and to obtain a declaration of the interest of each
party.”).
The district court properly dismissed Bryant’s request for a declaratory
judgment because it was duplicative of her quiet title claim. See id.Because the district court properly dismissed Bryant’s claims on the merits,
we reject Bryant’s contention that she was entitled to a preliminary injunction.
The district court did not abuse its discretion in taking judicial notice of the
title documents and the Purchase and Assumption Agreement (“P & A
Agreement”) between the Federal Deposit Insurance Corporation (“FDIC”) and
Chase. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (setting
forth standard review, and explaining the circumstances in which the district court
may take judicial notice of documents extraneous to the pleadings in ruling on a
motion to dismiss for failure to state a claim).
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The district court did not abuse its discretion by dismissing Bryant’s
complaint without leave to amend because an amendment would have been futile.
See Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir.1988) (dismissal without leave to
amend is not an abuse of discretion if amendment would be futile).
We do not consider allegations and arguments raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Defendant National Default Servicing Corporation’s motion to join in
Chase’s answering brief is granted.
All other pending motions are denied.
AFFIRMED.
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