Rosario Asuncion v. Specialized Loan Servicing ( 2016 )

FILED
NOT FOR PUBLICATION
OCT 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSARIO V. ASUNCION, No. 14-16804
Plaintiff-Appellant, D.C. No. 2:13-cv-02307-GMN-
CWH
v.
SPECIALIZED LOAN SERVICING MEMORANDUM*
INC., et al.,
Defendants-Appellees.
Appeal from the United States District Court
District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted October 20, 2016**
San Francisco, California
*
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).
1
Before: CALLAHAN and HURWITZ, Circuit Judges, and MOLLOY, District
Judge.***
Rosario Asuncion appeals the district court’s dismissal of her second
amended complaint without leave to amend. Asuncion sought to quiet title to
property in the state of Nevada she acquired through a loan, upon which she later
defaulted. The district court dismissed her complaint because she failed to allege
that she had tendered her debt obligations. We have jurisdiction under 28 U.S.C. §
1332 and 28 U.S.C. § 1291, and we affirm.1
I
We review de novo the district court’s dismissal of Asuncion’s second
amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 714 (9th Cir.
2011). Asuncion sought to quiet title under Nev. Rev. Stat. 40.010 “on the grounds
that the Deed of Trust was not properly assigned.” Under Nevada law, “an action
to quiet title requires a plaintiff to allege that she has paid any debt owed on the
property.” Wensley v. First Nat’l Bank of Nev., 874 F. Supp. 2d 957, 966 (D. Nev.
***
The Honorable Donald W. Molloy, District Judge for the U.S. District
Court, District of Montana, sitting by designation.
1
Because the parties are familiar with the facts and procedural history,
we restate them here only as necessary to explain our decision.
2
2012) (quoting Lalwani v. Wells Fargo Bank, N.A., No. 2–11–cv–00084, 2011 WL
4574338, at *3 (D. Nev. Sep. 30, 2011)). Asuncion failed to allege that she has
paid the debt owed on the property. The district court correctly held, therefore,
that Asuncion failed to state a claim upon which relief can be granted.
II
We review the denial of leave to amend a complaint for abuse of discretion.
Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). “A district
court may deny a plaintiff leave to amend if it determines that ‘allegation of other
facts consistent with the challenged pleading could not possibly cure the
deficiency,’ . . . or if the plaintiff had several opportunities to amend its complaint
and repeatedly failed to cure deficiencies.” Id. (quoting Schreiber Distrib. Co. v.
Serv–Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986)). The heart of
Asuncion’s complaint is the assertion that she does not need to allege that she has
tendered her debt in order to succeed; she has twice amended the complaint
without so alleging. The district court did not abuse its discretion in denying
Asuncion yet another opportunity to amend her complaint.
AFFIRMED.
3