MARCUS SILVING v. AMERICA'S SERVICING COMPANY , 552 F. App'x 684 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCUS SILVING and DEBORAH No. 12-15207
BADER, husband and wife,
D.C. No. 2:11-CV-00676-DGC
Plaintiffs - Appellants,
v. MEMORANDUM*
AMERICA’S SERVICING COMPANY, a
division of WELLS FARGO HOME
MORTGAGE, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted December 5, 2013
San Francisco, California
Before: GOULD and PAEZ, Circuit Judges, and EZRA, District Judge.**
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District Court for the
Western District of Texas, sitting by designation.
Appellants Marcus Silving and Deborah Bader appeal the district court’s
dismissal of their claims against America’s Servicing Company (“ASC”), US Bank
National Association as Trustee for CSMC Mortgage-Backed Pass-Through
Certificates, Series 2006-2, First American Title Insurance Company (“FATICO”),
and Mortgage Electronic Registration Systems, Inc. (“MERS”) arising out of the
trustee’s sale of their home. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review de novo dismissals under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. Kahle v. Gonzalez, 487 F.3d 697, 699 (9th Cir. 2007). We
affirm.
Appellants argue that the district court erred in dismissing their claims.
Appellants asserted a litany of claims against Defendants including: breach of
contract, quiet title, breach of the covenant of good faith and fair dealing, negligent
performance under the Good Samaritan doctrine, fraudulent concealment, fraud
and consumer fraud, and negligence per se. The district court properly dismissed
Appellants’ claims. Arizona law does not support Appellant’s “show me the note”
argument. Hogan v. Wash. Mut. Bank, N.A., 277 P.3d 781, 784 (Ariz. 2012) (en
banc); see also Zadrozny v. Bank of N.Y. Mellon, 720 F.3d 1163, 1170 (9th Cir.
2013) (following Hogan’s interpretation of Arizona law). Non-judicial foreclosure
sales are governed by statute in Arizona. See A.R.S. §§ 33-801 to -821. The non-
judicial foreclosure statutes impose no obligation on the beneficiary of a trustee’s
sale to “show the note” before conducting a non-judicial foreclosure. Hogan, 277
P.3d at 783. Accordingly, Appellants’ claims for breach of contract, breach of the
covenant of good faith and fair dealing, fraudulent concealment, and fraud that are
based on a “show the note” theory were properly dismissed by the district court.
Appellants’ claims for quiet title, breach of the covenant of good faith and
fair dealing, fraudulent concealment, fraud, consumer fraud, and negligence per se
that are based on arguments that various documents and assignments are “void” are
meritless. Appellants’ remaining contentions regarding securitization, negligent
performance, “false and unauthorized signatures” on documents, and failure to
satisfy conditions precedent are unpersuasive. Accordingly, the district court’s
judgment is affirmed.
AFFIRMED.