Kirk Carmichael v. Washington Mutual Bank, F.A.

FILED
NOT FOR PUBLICATION FEB 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KIRK M. CARMICHAEL; DAWN D. No. 11-56251
CARMICHAEL,
D.C. No. 3:10-cv-01351-JAH-
Plaintiffs - Appellants, POR
v.
MEMORANDUM *
WASHINGTON MUTUAL BANK, F.A.;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted February 11, 2013 **
Before: LEAVY, FERNANDEZ, and TASHIMA, Circuit Judges.
Kirk M. Carmichael and Dawn D. Carmichael appeal pro se from the district
court’s order dismissing their action arising out of foreclosure proceedings. We
*
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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
failure to state a claim. King v. California, 784 F.2d 910, 912 (9th Cir. 1986). We
affirm.
The district court properly dismissed the wrongful foreclosure claims
because JP Morgan Chase Bank (“Chase”) had statutory authority to initiate non-
judicial foreclosure proceedings. See Cal. Civ. Code § 2924(a)(1); see also
Moeller v. Lien, 30 Cal. Rptr. 2d 777, 782 (Ct. App. 1994) (“Upon default by the
trustor, the beneficiary may declare a default and proceed with a nonjudicial
foreclosure sale.”).
The district court properly dismissed the claims against Chase based on
allegations of wrongful conduct by Washington Mutual Bank because, under the
Purchase and Assumption Agreement between Chase and the Federal Deposit
Insurance Corporation, Chase did not assume any liability associated with
borrower claims against Washington Mutual Bank. See 12 U.S.C.
§ 1821(d)(2)(G)(i)(II) (authorizing FDIC to transfer “any asset or liability” of the
failed bank); see also W. Park Assocs. v. Butterfied Sav. & Loan Ass’n, 60 F.3d
1452, 1458 (9th Cir. 1995) (recognizing FDIC’s authority to limit liabilities
assumed by a purchasing bank through a Purchase and Assumption Agreement).
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The district court did not abuse its discretion in taking judicial notice of the
contents of the Purchase and Assumption Agreement. See Fed. R. Evid. 201(b)(2)
(allowing a court to take judicial notice of a fact “not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned”); Madeja v. Olympic Packers, LLC,
310 F.3d 628, 639 (9th Cir. 2002) (setting forth standard of review); see also
Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam) (in ruling on
a motion to dismiss, the district court may consider “matters properly subject to
judicial notice.”).
The district court did not abuse its discretion in denying the motion for
reconsideration because the Carmichaels failed to establish grounds for such relief.
Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
(9th Cir.1993) (setting forth standard of review and grounds for reconsideration
under Fed. R. Civ. P. 60(b)).
We do not consider 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)
(per curiam).
Chase’s motion for judicial notice, filed on December 21, 2011, is denied.
AFFIRMED.
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