Gricelda Rosetto v. Wells Fargo Home Mortgage

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRICELDA ROSSETTO, No. 14-16051
Plaintiff-Appellant, D.C. No. 2:14-cv-00142-GMN-
CWH
v.
WELLS FARGO HOME MORTGAGE,
INC.; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Submitted May 10, 2016**
San Francisco, California
Before: McKEOWN and FRIEDLAND, Circuit Judges and LEFKOW,*** Senior
District Judge.
Gricelda Rossetto appeals from the district court’s dismissal of her
*
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).
***
The Honorable Joan H. Lefkow, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
complaint against Wells Fargo Bank, N.A.1 and Mortgage Electronic Registration
Systems, Inc. (MERS), to quiet title on her mortgaged property based on claimed
false recordation of trust deed documents. We have jurisdiction under 28 U.S.C. §
1291. We affirm.
We review de novo a district court’s decision to dismiss for failure to state a
claim. Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1133 (9th Cir.
2012). On this appeal, however, Rossetto takes no issue with any of the district
court’s reasons for dismissal.2 Instead, she argues for the first time that this court
should recognize a Nevada right of action by analogy to an Arizona statute
imposing liability on a person who records a false or forged lien or encumbrance
against real property. Ariz. Rev Stat. § 33-420. She relies vaguely on In re MERS,
754 F.3d 772, 781–84 (9th Cir. 2014), which reversed a judgment dismissing a
claim in light of the Arizona Court of Appeals’ interpretation of § 33-420 in
Stauffer v. U.S. Bank National Association, 308 P.3d 1173, 1178 (Ariz. Ct. App.
2013) (holding “that an action to clear title of a false or fraudulent document that
1
Wells Fargo was improperly named in the complaint as Wells Fargo Home
Mortgage.
2
Her failure to raise issues in the district court and arguments in her opening brief
results in their waiver. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
2
asserts an interest in real property may be joined with an action for damages under
§ 33-420.A”).
Although we have discretion to consider issues of law raised for the first
time on appeal, see, e.g., Myers v. Merrill Lynch & Co., 249 F.3d 1087, 1088 (9th
Cir. 2001), we decline to do so in this case, because this is not a case where “the
issue presented is purely one of law and the opposing party will suffer no prejudice
as a result of the failure to raise the issue in the trial court.” United States v.
Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990).
Likewise, the district did not abuse its discretion in dismissing with
prejudice after Rossetto acquiesced in a motion to lift the automatic stay in her
bankruptcy proceeding, failed in both quiet title actions to oppose a motion to
dismiss, raises no substantive error on appeal, and even at this late date proffers no
facts in support of a viable cause of action under Nevada law. See Coal. to Defend
Affirmative Action, 674 F.3d at 1133 (reviewing decision to dismiss with prejudice
for an abuse of discretion).
AFFIRMED.
3