Fausto Cettolin, Jr. v. Gmac Mortgage LLC ( 2012 )

FILED
NOT FOR PUBLICATION SEP 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FAUSTO U. CETTOLIN, Jr.; DONNA L. No. 10-17915
CETTOLIN,
D.C. No. 3:10-cv-08036-JAT
Plaintiffs - Appellants,
v. MEMORANDUM *
GMAC MORTGAGE LLC; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Fausto U. Cettolin, Jr. and Donna L. Cettolin appeal pro se from the district
court’s judgment dismissing their action arising from foreclosure proceedings. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Cervantes v.
*
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).
Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We affirm in
part and dismiss in part.
The district court properly dismissed the Cettolins’ state law claims because
the Cettolins failed to obtain injunctive relief before the trustee’s sale of the
property. See Ariz. Rev. Stat. § 33-811(C) (trustor’s defenses and objections to a
trustee’s sale are waived if they are not raised in an action resulting in injunctive
relief before the sale); BT Capital, LLC v. TD Serv. Co. of Ariz., 275 P.3d 598, 600
(Ariz. 2012) (en banc) (“Where . . . a trustee’s sale is completed, a person subject to
§ 33-811(C) cannot later challenge the sale based on pre-sale defenses or
objections.”). Moreover, the Cettolins’ “show the note” argument is unpersuasive.
See Hogan v. Washington Mut. Bank, N.A., 277 P.3d 781, 782 (Ariz. 2012) (en
banc) (“Arizona’s non-judicial foreclosure statutes do not require the beneficiary to
prove its authority or ‘show the note’ before the trustee may commence a
non-judicial foreclosure.”).
The district court did not abuse its discretion by denying the Cettolins’
motion to amend based on futility and failure to comply with the local rules. See
Cervantes, 656 F.3d at 1041-43 (setting forth standard of review and upholding
denial of leave to amend because amendment would be futile and plaintiffs failed to
comply with the local rules).
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The district court did not abuse its discretion by denying the Cettolins’
“Motions for Relief and for Declaratory Judgment” because the Cettolins failed to
establish grounds for such relief. See Sch. Dist. No. 1J, Multnomah Cnty., Or. v.
ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of
review and grounds for reconsideration under Fed. R. Civ. P. 60(b)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam).
We lack jurisdiction to review the district court’s orders denying the
Cettolins’ subsequent motions for reconsideration because the Cettolins failed to
file an appeal or amended notice of appeal from those post-judgment orders. See
Fed. R. App. P. 4(a)(4)(B)(ii) (appellant must file a notice of appeal or amend a
previously filed notice of appeal to secure review of a post-judgment order).
Accordingly, we dismiss that portion of the appeal.
Defendants’ request for attorney’s fees is denied without prejudice to a
separately filed motion on the issue. See Fed. R. App. P. 38.
AFFIRMED in part; DISMISSED in part.
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