Nordeen v. Taylor, Bean & Whitaker Mortgage Corp. , 704 F. App'x 682 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: WILLIAM F. NORDEEN and No. 15-15922
CAROL A. NORDEEN,
D.C. No. 2:14-cv-01470-JCM
Debtors.
______________________________
MEMORANDUM*
WILLIAM F. NORDEEN; CAROL A.
NORDEEN,
Plaintiffs-Appellants,
v.
TAYLOR, BEAN & WHITAKER
MORTGAGE CORP.; OCWEN LOAN
SERVICING, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Chapter 13 debtors Carol A. Nordeen and William F. Nordeen appeal pro se
from the district court’s order affirming the bankruptcy court’s orders disposing of
the Nordeens’ action alleging federal and state law claims related to a mortgage on
real property. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo
the district court’s decision on appeal from the bankruptcy court and apply the
same standards of review applied by the district court. Suncrest Healthcare Ctr.
LLC v. Omega Healthcare Inv’rs, Inc. (In re Raintree Healthcare Corp.), 431 F.3d
685, 687 (9th Cir. 2005). We affirm.
The bankruptcy court properly granted summary judgment on the Nordeens’
quiet title claim because the Nordeens failed to show that their mortgage loan had
been forgiven or that Ocwen Loan Servicing, LLC claimed an adverse interest in
their property. See id. (setting forth standard of review); Chapman v. Deutsche
Bank Nat’l Trust Co., 302 P.3d 1103, 1106 (Nev. 2013) (setting forth elements of
quiet title action under Nevada law).
The bankruptcy court properly dismissed the Nordeens’ remaining state law
claims because the Nordeens failed to allege facts sufficient to state any plausible
claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also
Bulbman, Inc. v. Nevada Bell, 825 P.2d 588, 592 (Nev. 1992) (setting forth
elements of fraudulent misrepresentation claim under Nevada law); Dow Chem.
Co. v. Mahlum, 970 P.2d 98, 110 (Nev. 1998), overruled in part on other grounds
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by GES, Inc. v. Corbitt, 21 P.3d 11 (Nev. 2001) (setting forth elements of
fraudulent concealment claim under Nevada law).
The bankruptcy court properly dismissed the Nordeens’ Fair Debt Collection
Practices Act claim because the Nordeens failed to allege facts sufficient to show
that Ocwen Loan Servicing, LLC, made a false, deceptive, or misleading
representation to them. See 15 U.S.C. § 1692e (prohibiting a “debt collector” from
using “any false, deceptive, or misleading representation or means in connection
with the collection of any debt.”).
The district court did not abuse its discretion in dismissing the claims against
Taylor, Bean & Whitaker because the Nordeens failed to serve the summons and
complaint in a proper manner or to show good cause for their failure to do so. See
Fed. R. Bankr. P. 7004(a)(1) (making Fed. R. Civ. P. 4(m) applicable to
bankruptcy cases); In re Sheehan, 253 F.3d 507, 512-13 (9th Cir. 2001) (discussing
good cause and district court’s broad discretion under Fed. R. Civ. P. 4(m) to
extend time for service or to dismiss the action without prejudice).
The bankruptcy court did not abuse its discretion in denying the Nordeens’
motions under Fed. R. Civ. P. 59(e) and 60(b) because the Nordeens failed to
demonstrate any grounds for such relief. See Fed. R. Bankr. P. 9023 (making Fed.
R. Civ. P. 59 applicable to bankruptcy cases); Fed. R. Bankr. P. 9024 (making Fed.
R. Civ. P. 60 applicable to bankruptcy cases); Sch. Dist. No. 1J, Multnomah Cty.,
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Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of
review and listing grounds warranting reconsideration under Fed. R. Civ. P. 59(e)
and 60(b)).
We reject as without merit the Nordeens’ contention that the bankruptcy
court lacked jurisdiction.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief or arguments raised for the first time on appeal. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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