Jeff Schneidereit v. Trust of the Scott and Brian , 693 F. App'x 733 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFF SCHNEIDEREIT; ADELE MARIE No. 13-55395
SCHNEIDEREIT,
D.C. No. 2:11-cv-06919-JVS-RNB
Plaintiffs-Appellants,
v. MEMORANDUM*
TRUST OF THE SCOTT AND BRIAN,
INC.,
Defendant,
and
401 K PROFIT SHARING PLAN, U/A
DTD 01/01/2003, FBO Scott and Janet
Ehrke; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
*
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).
Jeff and Adele Marie Schneidereit appeal pro se from the district court’s
judgment dismissing their action alleging federal and state law claims relating to a
mortgage loan and nonjudicial foreclosure. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo dismissals under Fed. R. Civ. P. 12(b)(6) and 12(c).
Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). We may affirm on any
basis supported by the record. Somers v. Apple, Inc., 729 F.3d 953, 960 (9th
Cir. 2013). We affirm.
The district court properly dismissed the Schneidereits’ quiet title claim and
their “gross negligence” claims seeking to set aside the trustee’s sale, which we
treat as wrongful foreclosure claims, because the Schneidereits did not allege facts
sufficient to show that they tendered or could have tendered the full amount of the
debt, any facts entitling them to an exception to the tender rule, and any prejudice
caused by the alleged procedural defects. See Lona v. Citibank, N.A., 134 Cal.
Rptr. 3d 622, 640-42 (Ct. App. 2011) (setting forth the tender requirement and its
four exceptions); Arnolds Mgmt. Corp. v. Eischen, 205 Cal. Rptr. 15, 17 (Ct.
App. 1984) (“[A]n action to set aside a trustee’s sale for irregularities in sale notice
or procedure should be accompanied by an offer to pay the full amount of the debt
for which the property was security.”); Aguilar v. Bocci, 114 Cal. Rptr. 91, 92 (Ct.
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App. 1974) (a mortgagee cannot quiet title without satisfying his debt); see also
Knapp v. Doherty, 20 Cal. Rptr. 3d 1, 8 n.4 (Ct. App. 2004) (to attack a nonjudicial
foreclosure sale, a plaintiff must plead and prove “an improper procedure and the
resulting prejudice” (citation and internal quotation marks omitted)).
The district court properly dismissed the Schneidereits’ negligence claims
against the banking entities because the Schneidereits failed to allege facts
sufficient to show that these defendants owed them a duty of care in relation to
their loan and its modification. See Nymark v. Heart Fed. Savings & Loan Assn.,
283 Cal. Rptr. 53, 56 (Ct. App. 1991) (“[A]s a general rule, a financial institution
owes no duty of care to a borrower when the institution’s involvement in the loan
transaction does not exceed the scope of its conventional role as a mere lender of
money.”).
Dismissal of the Schneidereits’ negligence claims against the purchasers of
the property was proper because the Schneidereits failed to allege facts sufficient
to show a duty owed to them. See Ladd v. County of San Mateo, 911 P.2d 496,
498 (Cal. 1996) (elements of a negligence claim under California law).
Dismissal of the Schneidereits’ promissory estoppel claim was proper
because the Schneidereits failed to allege facts sufficient to state a plausible claim.
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See Jones v. Wachovia Bank, 179 Cal. Rptr. 3d 21, 28 (Ct. App. 2014) (elements of
a promissory estoppel claim under California law).
The district court properly dismissed the Schneidereits’ disability
discrimination-related claims because the Schneidereits failed to allege facts
sufficient to state a plausible claim for relief. See McDonald v. Coldwell Banker,
543 F.3d 498, 505 (9th Cir. 2008) (elements of Fair Housing Act discrimination
claim); Molski v. M.J. Cable, Inc., 481 F.3d 724, 730-31 (9th Cir. 2007) (elements
of a Title III ADA claim and noting that California’s “Unruh Act is coextensive
with the ADA”); Allen v. Pac. Bell, 348 F.3d 1113, 1114 n.1 (9th Cir. 2003)
(“California relies on ADA precedents to interpret analogous provisions of
[California’s] Fair Employment and Housing Act.”); Lovell v. Chandler, 303 F.3d
1039, 1052 (9th Cir. 2002) (elements of a disability discrimination claim under
Section 504 of the Rehabilitation Act of 1973); see also Weyer v. Twentieth
Century Fox Film Corp., 198 F.3d 1104, 1114-16 (9th Cir. 2000) (under Title III of
the ADA, there must be a connection to an actual physical place, and there is no
discrimination where disabled individuals are given the same opportunity as
everyone else).
The district court properly dismissed the Schneidereits’ dependent abuse
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claim under section 15610.30 of the California Welfare and Institutions Code
because the Schneidereits failed to allege facts sufficient to state a plausible claim.
See Stebley v. Litton Loan Servicing, LLP, 134 Cal. Rptr. 3d 604, 608 (Ct.
App. 2011) (foreclosing on the home of a “dependent” is, absent more, not a
“wrongful use” of property under Cal. Welf. & Inst. Code § 15610.30).
The district court did not abuse its discretion by denying leave to amend
because further amendment would be futile. See Cervantes v. Countrywide Home
Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review
and explaining that dismissal without leave to amend is proper when amendment
would be futile); Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002)
(“[W]hen a district court has already granted a plaintiff leave to amend, its
discretion in deciding subsequent motions to amend is particularly broad.” (citation
and internal quotation marks omitted)).
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).
This appeal as to appellees GMAC Mortgage, LLC (“GMACM”) and
Executive Trustee Services, LLC (“ETS”) had been subject to an automatic stay
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imposed by the United States Bankruptcy Court for the Southern District of New
York. Based upon a February 11, 2016 bankruptcy court order, the Schneidereits
are barred from continuing to prosecute monetary claims against GMACM and
ETS as a result of failing to file a proof of claim in the bankruptcy court.
Accordingly, this appeal as to appellees GMACM and ETS is dismissed.1
AFFIRMED.
1
Dismissal of this appeal as to GMACM is further supported by the
Schneidereits’ contention, set forth in their response (Docket Entry No. 31) to this
court’s order to show cause, that “GMACM has never been a party to this lawsuit
or appeal.”
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