Lloyd Outten, Jr. v. the Bank of New York Mellon , 692 F. App'x 918 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LLOYD L. OUTTEN, Jr., an individual, No. 13-57173
Plaintiff-Appellant, D.C. No. 2:13-cv-04624-DSF-PJW
v.
MEMORANDUM*
BANK OF NEW YORK MELLON CORP.,
FKA The Bank of New York, As Trustee for
The Certificateholders of The CWABS, Inc.,
Asset Backed Certificates, Series 2007-3; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Lloyd L. Outten, Jr., appeals pro se from the district court’s judgment
dismissing his diversity action alleging state law claims related to the foreclosure
*
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).
of his property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
a district court’s dismissal for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We
affirm.
The district court properly dismissed Outten’s action because Outten failed
to allege facts sufficient to state a plausible quiet title claim. See Lueras v. BAC
Home Loans Servicing, LP, 163 Cal. Rptr. 3d 804, 835 (Ct. App. 2013) (a
borrower cannot quiet title without first discharging the outstanding debt secured
by a deed of trust); see also Siliga v. Mortg. Elec. Registration Sys., Inc., 161 Cal.
Rptr. 3d 500, 507 (Ct. App. 2013), disapproved of in part on other grounds
by Yvanova v. New Century Mortg. Corp., 365 P.3d 845 (Cal. 2016) (“California
courts have held that a trustor who agreed under the terms of the deed of trust that
MERS, as the lender’s nominee, has the authority to exercise all of the rights and
interests of the lender . . . is precluded from maintaining a cause of action based on
the allegation that MERS has no authority to exercise those rights.”).
The district court did not abuse its discretion in dismissing Outten’s action
without granting further leave to amend because further amendment would be
futile. See Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th
2 13-57173
Cir. 1989) (setting forth standard of review and explaining that “[t]he district
court’s discretion to deny leave to amend is particularly broad where plaintiff has
previously amended the complaint”).
The district court did not abuse its discretion in granting defendants’ request
for judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.
2001) (setting forth standard of review).
The Bank of New York Mellon’s request for judicial notice (Docket Entry
No. 22) is granted.
AFFIRMED.
3 13-57173