Brett Ball v. Suntrust Mortgage, Inc. , 502 F. App'x 711 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 03 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
BRETT J. BALL, No. 11-16474
Plaintiff - Appellant, D.C. No. 2:10-cv-02064-PMP-
LRL
v.
SUNTRUST MORTGAGE, INC.; et al., MEMORANDUM *
Defendants - Appellees,
IRYNA SYSENKO,
Intervenor - Defendant -
Appellee.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Brett J. Ball appeals pro se from the district court’s judgment dismissing his
*
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).
diversity action arising out of foreclosure proceedings. We have jurisdiction under
28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under
Fed. R. Civ. P. 12(b)(6) and a judgment on the pleadings under Fed. R. Civ. P.
12(c). Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). We affirm.
The district court properly dismissed Ball’s wrongful foreclosure and quiet
title claims because Ball did not allege facts showing that he was not in default
when defendants initiated non-judicial foreclosure proceedings. See Breliant v.
Preferred Equities Corp., 918 P.2d 314, 318 (Nev. 1996) (“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 the homeowner was not in default).
The district court properly dismissed and granted judgment on the pleadings
on Ball’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 must be based on an
independent cause of action).
Ball’s contentions concerning securitization, Mortgage Electronic
Registration Systems, Inc., and defendants’ standing to pursue non-judicial
2 11-16474
foreclosure are unpersuasive.
Defendant Aztec Foreclosure Corporation’s motion for miscellaneous relief
is denied as moot.
AFFIRMED.
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