Susan Crowden v. Federal National Mortgage Asso , 710 F. App'x 303 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN CROWDEN, No. 12-35443
Plaintiff-Appellant, D.C. No. 3:11-cv-01083-HZ
v.
MEMORANDUM*
FEDERAL NATIONAL MORTGAGE
ASSOCIATION; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted January 16, 2018**
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Susan Crowden appeals pro se from the district court’s judgment dismissing
her diversity action arising out of foreclosure proceedings. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of
Civil Procedure 12(b)(6). Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.
*
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).
2008). We vacate and remand.
The district court dismissed Crowden’s action after finding, among other
things, that Mortgage Electronic Registration Systems, Inc. (“MERS”) was a valid
trust beneficiary under Oregon law. However, after the district court entered
judgment, the Oregon Supreme Court decided, in reviewing a deed of trust similar
to Crowden’s, that MERS cannot be a beneficiary of a deed of trust under the
Oregon Trust Deed Act, nor is MERS eligible to serve as the beneficiary simply by
being designated as such in the deed of trust. See Brandrup v. ReconTrust Co.,
N.A., 303 P.3d 301, 304, 309-12 (Or. 2013) (en banc). Because the district court
did not have the benefit of Brandrup when it entered its order of dismissal, we
vacate and remand for further proceedings in light of Brandrup.
We reject as without merit Crowden’s contention that the district court erred
in taking judicial notice of documents related to the foreclosure.
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); United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”).
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
2 12-35443