William Nietzche v. Freedom Home Mortgage Corp. ( 2023 )

FILED
NOT FOR PUBLICATION
MAR 20 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM X. NIETZCHE, solely as No. 19-35876
trustee for KRME International Trust;
JULIE A. METCALF KINNEY; D.C. No. 3:18-cv-01930-SI
WILLIAM KINNEY, Jr.,
Plaintiffs-Appellants, MEMORANDUM*
v.
FREEDOM HOME MORTGAGE
CORPORATION; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC.; BENEFICIAL
OREGON, INC.; HSBC HOLDINGS,
PLC; REGIONAL TRUSTEE SERVICES
CORPORATION; MTGLQ INVESTORS,
LP; RUSHMORE LOAN
MANAGEMENT SERVICES, LLC; U.S.
BANK, N.A.; CLEAR RECON
CORPORATION; BARRISTERS
SUPPORT SERVICES; URBAN
HOUSING DEVELOPMENT, LLC;
FREEDOM MORTGAGE
CORPORATION; HSBC FINANCE
CORPORATION; HSBC HOME
EQUITY LOAN CORPORATION;
BENEFICIAL FINANCIAL; GOLDMAN
SACHS GROUP INC., As owner of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
MTGLQ; U.S. BANK TRUST, N.A., As
trustee for securitized trust HSBC Trust
HSBC Home Equity Loan Trust 2005-1
Trust; UHD HOLDINGS; RAIN CITY
CAPITAL OF OREGON, LLC; ROMAN
OZERUGA, In both personal and
professional capacities; MARK K.
PASSANANTE, In both personal and
professional capacities; TERRANCE J.
SLOMINSKI, In both personal and
professional capacities; UNITED STATES
CORPORATION COMPANY; STATE
OF OREGON CORPORATION; DOES, 1
through 100 inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted March 17, 2023**
Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges
Plaintiffs appeal from the district court’s dismissal of their action arising out
of a nonjudicial foreclosure of real property in Portland, Oregon. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review the dismissal de novo and
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
denial of leave to amend for an abuse of discretion. Cervantes v. Countrywide
Home Loans, Inc., 656 F.3d 1034, 1040-41 (9th Cir. 2011). We affirm.
The district court properly interpreted the documents attached to the
complaint and refused to accept speculative, conclusory allegations. See Daniels-
Hall v. Nat’l Educ. Ass’n., 629 F.3d 992, 998 (9th Cir. 2010) (holding that the
court is not “required to accept as true allegations that contradict exhibits attached
to the Complaint or matters properly subject to judicial notice, or allegations that
are merely conclusory, unwarranted deductions of fact, or unreasonable
inferences”). In any event, plaintiffs’ arguments regarding MERS1 have been
rejected by the Oregon Supreme Court. See Brandrup v. ReconTrust Co., N.A.,
303 P.3d 301, 318 (Or. 2013) (en banc) (holding that Oregon Revised Statutes §
86.735(1) “does not require recordation of ‘assignments’ of the trust deed by
operation of law that result from the transfer of the secured obligation”).
The district court did not abuse its discretion by dismissing without leave to
amend. The district court has “particularly broad” discretion to deny leave to
amend when a plaintiff has previously amended. Chodos v. W. Publ’g Co., 292
F.3d 992, 1003 (9th Cir. 2002) (internal quotation marks omitted). Moreover,
amendment would have been futile because plaintiffs’ claims fail as a matter of
1
MERS refers to Mortgage Electronic Registration Systems, Incorporated.
3
law. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (holding that
“[f]utility of amendment can, by itself, justify the denial of a motion for leave to
amend”). Plaintiffs have not offered specific facts that would state any claim
against any specific defendant.
The district court did not abuse its discretion by staying discovery and the
filing of motions until it ruled on the pending motions to dismiss. See Hunt v.
Cnty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (holding that the district has
“broad discretion to manage discovery and to control the course of litigation”)
(internal quotation marks omitted); Wood v. McEwen, 644 F.2d 797, 801 (9th Cir.
1981) (holding that the district court may stay discovery if there is a question about
whether the plaintiff can state a claim for relief).
There is no evidence of bias in this case. Bias arises “from an extrajudicial
source and not from conduct or rulings made during the course of the
proceedings.” Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999) (internal
quotation marks omitted). Plaintiffs’ attempt to add the judge to the complaint
because they disagreed with court rulings did not require automatic recusal. See
United States v. Holland, 519 F.3d 909, 915 (9th Cir. 2008) (holding that recusal is
not automatic merely because a party threatens a judge).
4
We decline to consider both the arguments and claims waived by plaintiffs
in their opening brief and the issues raised for the first time on appeal. See Hayes
v. Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017) (holding that matters “not
specifically and distinctly raised and argued” in the opening brief have been
waived) (internal quotation marks omitted); Smith v. Marsh, 194 F.3d 1045, 1052
(9th Cir. 1999) (holding that we generally do not consider issues presented for the
first time on appeal).
Plaintiffs’ motion to certify questions to the Oregon Supreme Court (Dkt.
Entry No. 83) is DENIED.
AFFIRMED.
5