Jimi Campillo v. Dovenmuehle Mortgage, Inc. , 677 F. App'x 325 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMI CAMPILLO, No. 15-55167
Plaintiff-Appellant, D.C. No. 2:13-cv-07077-DMG-
VBK
v.
DOVENMUEHLE MORTGAGE, INC.; MEMORANDUM*
MGC MORTGAGE, INC., a Texas
Corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Jimi Campillo appeals pro se from the district court’s order dismissing with
prejudice his diversity action arising from foreclosure proceedings. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
*
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).
dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6), and we can affirm on any ground supported by the record. Thompson v.
Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
The district court properly dismissed Campillo’s wrongful foreclosure claim,
which alleged that defendants lacked ownership of the loan or possession of the
original note, because the claim arose prior to Campillo’s bankruptcy petition
under chapter 7 of the Bankruptcy Code, and Campillo failed to disclose it as an
asset in his bankruptcy proceeding. See Ah Quin v. County of Kauai Dept. of
Transp., 733 F.3d 267, 271 (9th Cir. 2013) (doctrine of judicial estoppel generally
bars discharged debtor from prosecuting claims omitted from bankruptcy
schedules). We reject as without merit Campillo’s contention that the bankruptcy
court’s February 22, 2013 order provided for the abandonment of the claims at
issue.
Dismissal of Campillo’s wrongful foreclosure claim based on defendants’
alleged breach of the Servicer Participation Agreement was proper because
Campillo failed to allege facts sufficient to show that he was an intended third-
party beneficiary of this agreement. See Astra USA, Inc. v. Santa Clara County,
563 U.S. 110, 117-18 (2011) (parties that incidentally benefit from a government
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contract may not enforce the contract absent an intent to the contrary); GECCMC,
2005–C1 Plummer St. Office L.P. v. JPMorgan Chase Bank, N.A., 671 F.3d 1027,
1033 (9th Cir. 2012) (“Parties that benefit from a government contract are
generally assumed to be incidental beneficiaries, rather than intended beneficiaries,
and so may not enforce the contract absent a clear intent to the contrary.” (citation
omitted)).
The district court did not abuse its discretion in denying Campillo leave to
amend because amendment would have been futile. See Yakama Indian Nation v.
Washington Dep’t of Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999) (denial of
leave to amend reviewed for abuse of discretion).
We do not address matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Campillo’s requests set forth in the opening brief are denied.
AFFIRMED.
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