Eva Futch v. Bac Home Loans Servicing , 573 F. App'x 636 ( 2014 )

FILED
NOT FOR PUBLICATION MAY 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVA M. FUTCH, No. 11-17573
Plaintiff - Appellant, D.C. No. 2:10-cv-02256-KJD-
GWF
v.
BAC HOME LOANS SERVICING, LP; et MEMORANDUM*
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted May 15, 2014**
San Francisco, California
Before: RIPPLE,*** SILVERMAN, and GOULD, Circuit Judges.
*
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).
***
The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
-2-
Eva M. Futch 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. King v. California, 784 F.2d 910,
912 (9th Cir. 1986). We affirm.
The district court properly dismissed Futch’s wrongful foreclosure and quiet
title claims because Futch did not allege facts showing that she was not in default
on her loan when defendants initiated non-judicial foreclosure proceedings. 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 good
title in himself.”); Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623
(Nev. 1983) (wrongful foreclosure claim requires allegation 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 Futch’s civil conspiracy and injunctive
and declaratory 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).
Futch’s contentions that defendants lacked standing to pursue foreclosure,
and that the assignments transferring the interest in the promissory note and deed
-3-
of trust are invalid, in part because of the use of Mortgage Electronic Registration
Systems, Inc. (“MERS”) as the beneficiary of the deed of trust and lender’s
nominee, are foreclosed by Edelstein v. Bank of New York Mellon, 286 P.3d 249,
259-60, 262 (Nev. 2012) (en banc) (separating the instruments does not
permanently bar foreclosure, and an entity has authority to pursue foreclosure
when it is entitled to enforce both the deed of trust and the note); see also
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1044 (9th Cir. 2011)
(MERS may act as a beneficiary of the trust deed).
AFFIRMED.