Gary Lial v. Bank of America Corporation , 633 F. App'x 406 ( 2016 )

FILED
NOT FOR PUBLICATION JAN 29 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY W. LIAL; MARQULINN LIAL, No. 12-16855
Plaintiffs - Appellants, D.C. No. 2:10-cv-02121-GMN-
PAL
v.
BANK OF AMERICA CORPORATION; MEMORANDUM*
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Gary W. and Marqulinn Lial appeal pro se from the district court’s judgment
dismissing their diversity action alleging state law claims related to a foreclosure.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissal under Federal Rule of Civil Procedure 12(b)(6). Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We affirm.
The district court properly dismissed the Lials’ wrongful foreclosure and
quiet title claims because the Lials did not allege facts sufficient to show that they
were not in default on their loans and that defendants exercised the power of sale.
See Breliant v. Preferred Equities Corp., 918 P.2d 314, 318 (Nev. 1996) (per
curiam) (“In a quiet title action, the burden of proof rests with the plaintiff to prove
title in himself.”); Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623
(Nev. 1983) (wrongful foreclosure claim requires allegations that a lender
exercised the power of sale and foreclosed upon property when no failure of
performance existed on the part of the borrower).
The district court properly dismissed the Lials’ civil conspiracy and
injunctive relief claims after dismissing the underlying causes of action. See, e.g.,
Eikelberger v. Tolotti, 611 P.2d 1086, 1088 (Nev. 1980) (conspiracy action for
damages generally must be based on a viable, independent cause of action).
The Lials’ lack standing to enforce the terms of any pooling and service
agreement and therefore cannot challenge any assignment into a securitized trust.
See Wood v. Germann, 331 P.3d 859, 861-62 (Nev. 2014) (“[A]ppellant, who is
neither a party nor an intended third-party beneficiary of the PSA, lacked standing
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to challenge the assignment’s validity.”). We reject as without merit the Lials’
contention that the securitization of their loan rendered their note or deed of trust
fraudulent.
Contrary to the Lials’ arguments under Nevada law, Mortgage Electronic
System, Inc. (“MERS”) was properly identified as a beneficiary in their deed of
trust and had the authority to assign its interest. See Edelstein v. Bank of N.Y.
Mellon, 286 P.3d 249, 260 (Nev. 2012) (“We . . . hold that MERS is capable of
being a valid beneficiary of a deed of trust, separate from its role as an agent
(nominee) for the lender . . . . MERS, as a valid beneficiary, may assign its
beneficial interest in the deed of trust to the holder of the note, at which time the
documents are reunified.”); see also Diaz v. Kubler Corp., 785 F.3d 1326, 1329
(9th Cir. 2015) (“When interpreting state law, we are bound to follow the decisions
of the state’s highest court . . . .” (internal quotation marks omitted)).
We do not consider arguments raised for the first time on appeal. See
Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998).
AFFIRMED.
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