Paul Moseley v. Citimortgage Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PAUL MOSELEY, No. 15-35210
Plaintiff-Appellant, D.C. No. 3:14-cv-05802-RJB
v.
MEMORANDUM*
CITIMORTGAGE INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Paul Moseley appeals pro se from the district court’s judgment dismissing
his action alleging state and federal claims arising from defendant’s alleged
improper failure to discharge his mortgage loan. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a district court’s dismissal for failure to state a
*
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).
claim under Federal Rule of Civil Procedure 12(b)(6), and we may affirm on any
ground supported by the record. Hooks v. Kitsap Tenant Support Servs., Inc., 816
F.3d 550, 554 (9th Cir. 2016). We affirm.
The district court properly dismissed Moseley’s claim under Washington
Uniform Commercial Code § 3-603 because Moseley is neither an indorser nor an
accommodation party under the deed of trust, and because a personal check with
“ETF Only” written on it does not constitute an unconditional tender. See Wash.
Rev. Code § 62A.3-603(b) (“If tender of a payment of an obligation to pay an
instrument is made . . . and the tender is refused, there is a discharge, to the extent
of the amount of the tender, of the obligation of an indorser or accommodation
party having right of recourse with respect to the obligation to which the tender
relates.” (emphasis added)); id. § 62A.3-204(b) (defining “indorser”); id.
§ 62A.3-419 (discussing “accommodation party”); see also Wash. Rev. Code
§ 62A.3-106(a) (“[A] promise . . . is unconditional unless it states . . . an express
condition to payment . . . .”); Jones v. Best, 950 P.2d 1, 6-7 (Wash. 1998) (en banc)
(“We have held that tender of the amount due must be unconditional in order to
stop interest from running.”).
We lack jurisdiction to consider the district court’s award of attorney’s fees.
See Hunt v. City of Los Angeles, 638 F.3d 703, 719 (9th Cir. 2011) (“[A]
2 15-35210
supplemental notice of appeal is required for us to have jurisdiction over an
attorney fees issue that becomes final subsequent to the initial notice of appeal.”
(citation and emphasis omitted)).
Moseley’s motion to strike CitiMortgage’s answering brief, filed on
November 9, 2015, and request for a mandatory judicial notice, filed on December
4, 2015, are denied.
AFFIRMED.
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