Virgilio Orcilla v. Bank of America, N.A.

FILED
NOT FOR PUBLICATION MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VIRGILIO ORCILLA; TEODORA No. 11-16727
ORCILLA,
D.C. No. 5:10-cv-03931-HRL
Plaintiffs - Appellants,
v. MEMORANDUM *
BANK OF AMERICA, N.A.; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Howard R. Lloyd, Magistrate Judge, Presiding **
Submitted May 14, 2013 ***
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Virgilio and Teodora Orcilla appeal pro se from the district court’s judgment
dismissing their action arising from foreclosure proceedings. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review de novo, Cervantes v. Countrywide Home
Loans, Inc., 656 F.3d 1034, 1040-41 (9th Cir. 2011), and we affirm.
The district court properly dismissed the Orcillas’ federal breach of contract
claim because the Orcillas were not intended third-party beneficiaries of the
Servicer Participation Agreement. See 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 and internal quotation
marks omitted)); Klamath Water Users Protective Assoc’n v. Patterson, 204 F.3d
1206, 1211 (9th Cir. 1999) (plain language of government contract was sufficient
to show lack of intent to grant third-party beneficiary rights).
The district court properly dismissed the Orcillas’ procedural due process
claim because the Orcillas did not have a protected property interest in
modification of their mortgage loan. See Doyle v. City of Medford, 606 F.3d 667,
672 (9th Cir. 2010) (government program granting decision-maker broad
discretion does not create a property interest); see also Bd. of Regents v. Roth, 408
U.S. 564, 569-70 (1972) (procedural protections of due process clause are
triggered only when there is a cognizable liberty or property interest at stake).
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The district court properly dismissed the Orcillas’ Racketeer Influenced and
Corrupt Organizations Act claim because the allegations in their complaint did not
set forth facts demonstrating the requisite pattern of racketeering activity involving
more than one transaction. See Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1535
(9th Cir. 1992) (pattern requires more than one scheme with a “single purpose
which happen[s] to involve more than one act taken to achieve that purpose”).
The district court did not abuse its discretion by denying the Orcillas leave to
file an amended complaint because amendment would be futile. See Cervantes,
656 F.3d at 1041 (setting forth standard of review).
The district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over the Orcillas’ state law claims after dismissing their
federal claims. See 28 U.S.C. § 1367(c)(3); Ove v. Gwinn, 264 F.3d 817, 821 (9th
Cir. 2001) (setting forth the standard of review).
We deny Big Sur, Inc.’s request for judicial notice, filed on December 9,
2011.
AFFIRMED.
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