Bernard Przybylski, Jr. v. Federal National Mortgage Asso , 586 F. App'x 377 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 04 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNARD JOHN PRZYBYLSKI, Jr., No. 13-15462
Plaintiff - Appellant, D.C. No. 3:12-cv-08248-NVW
v.
MEMORANDUM*
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Bernard John Przybylski, Jr., appeals pro se from the district court’s
judgment in his action arising out of foreclosure proceedings. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P.
*
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).
12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th
Cir. 2011). We affirm.
The district court properly dismissed Przybylski’s action because Przybylski
failed to allege facts sufficient to state a cognizable claim for relief. See Hogan v.
Wash. Mut. Bank, N.A., 277 P.3d 781, 782 (Ariz. 2012) (en banc) (“Arizona’s non-
judicial foreclosure statutes do not require the beneficiary to prove its authority or
‘show the note’ before the trustee may commence a non-judicial foreclosure.”);
Farrell v. West, 114 P.2d 910, 911 (Ariz. 1941) (where “it appears there is an
unsatisfied balance due to a defendant-mortgagee, . . . , the court will not quiet the
title until and unless [the plaintiff] pays off such mortgage lien”); Strawberry
Water Co. v. Paulsen, 207 P.3d 654, 659 (Ariz. Ct. App. 2008) (real property
interests cannot be converted).
Contrary to Przybylski’s contentions, the district court properly concluded
that abstention was not warranted. See Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d
1163, 1167 (9th Cir. 2013) (setting forth elements of Younger abstention doctrine
and concluding that it did not apply to state unlawful detainer actions); Sexton v.
NDEX W., LLC, 713 F.3d 533, 536-38 (9th Cir. 2013) (discussing elements of prior
exclusive jurisdiction doctrine and Colorado River abstention doctrine and
concluding that neither doctrine applied in the absence of pending state court
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proceedings involving the same property); Poulos v. Caesars World, Inc., 379 F.3d
654, 671 (9th Cir. 2004) (explaining that Burford abstention “is concerned with
protecting complex state administrative processes from undue federal interference”
and identifying three factors that must be met before it is applied (citation and
internal quotation marks omitted)). Moreover, we reject as without merit
Przybylski’s contention that the district court should have remanded his action on
the basis of abstention.
We do not consider Przybylski’s request for leave to amend because it was
raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2
(9th Cir. 2009) (per curiam); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d
741, 749 (9th Cir. 2006) (“[W]e generally will not remand with instructions to
grant leave to amend unless the plaintiff sought leave to amend below.”).
Przybylski’s motion for judicial notice, filed on June 20, 2013, is denied.
Fannie Mae’s motion for judicial notice, filed on July 22, 2013, is granted.
AFFIRMED.
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