Duane Varbel v. Countrywide Home Loans Incorpo ( 2013 )

FILED
NOT FOR PUBLICATION FEB 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DUANE VARBEL, No. 11-17628
Plaintiff - Appellant, D.C. No. 2:11-cv-00897-SRB
v.
MEMORANDUM *
COUNTRYWIDE HOME LOANS
INCORPORATED; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Duane Varbel appeals pro se from the district court’s judgment dismissing
his diversity action arising from foreclosure proceedings. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Cervantes v. Countrywide Home
*
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).
Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We affirm.
The district court properly dismissed Varbel’s breach of contract claim
because Varbel did not allege facts showing the existence of a contract between
him and any of the defendants. See Chartone, Inc. v. Bernini, 83 P.3d 1103, 1111
(Ariz. Ct. App. 2004) (an essential element of breach of contract claim is existence
of a contract).
The district court properly dismissed Varbel’s quiet title claim because
Varbel did not allege facts showing that the loan has been repaid. See Farrell v.
West, 114 P.2d 910, 911 (Ariz. 1941) (where “it appears there is an unsatisfied
balance due to a defendant-mortgagee, or his assignee, the court will not quiet the
title until and unless [plaintiff] pays off such mortgage lien”).
The district court properly dismissed Varbel’s claim under section § 33-420
of Arizona Revised Statutes because Varbel failed to allege facts showing that
defendants had knowingly recorded a false claim on his property. See Ariz. Rev.
Stat. § 33-420.
The district court properly dismissed Varbel’s remaining claims related to
the alleged wrongful foreclosure of his property because Varbel does not dispute
that he is in default and he failed to allege facts to dispute the trustee’s statutory
right to foreclose. See Hogan v. Wash. Mut. Bank, N.A., 277 P.3d 781, 784 (Ariz.
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2012) (en banc) (note and deed of trust are “distinct instruments that serve different
purposes”; dispositive question is whether trustee had statutory right to foreclose
on deed of trust). In addition, Arizona’s deed of trust statutes impose no obligation
on the beneficiary to “show the note[,]” and the trustee need not comply with
Arizona’s Uniform Commercial Code before commencing a non-judicial
foreclosure. Id. at 783-84.
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) (per curiam).
AFFIRMED.
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