Bob Hanks v. Christina Harper

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 15, 2021
• Docket: 19-17537
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 15 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

BOB L. HANKS, No. 19-17537

Plaintiff-Appellant, D.C. No. 2:19-cv-03174-DLR v. CHRISTINA HARPER, trustee of LSF9 MEMORANDUM* Master Participation Trust; trustee of US Bank Trust NA; BANK OF AMERICA, by Caliber Home Loans Incorporated, standing in the shoes of; MORTGAGE LAW FIRM, Named as The Mortgage Law Firm; U.S. BANK TRUST, N.A.; LSF9 MASTER PARTICIPATION TRUST; CALIBER HOME LOANS, INC.; BANK OF AMERICA, NA; FIRST AMERICAN FINANCIAL CORP., DBA First American Title Insurance Company; FIRST AMERICAN TITLE INSURANCE COMPANY; UNKNOWN PARTIES, Named as Undisclosed (I-XX), Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Submitted October 13, 2021** San Francisco, California

* 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). Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.

Bob Hanks appeals the district court’s dismissal of his claims relating to a

foreclosure proceeding and its denial of his motion for findings of fact and

conclusions of law.1 As the facts are known to the parties, we repeat them only as

necessary to explain our decision.

I

First, Hanks contends that the district court erred in “failing or refusing to

rule on” his motion for findings of fact and conclusions of law under Federal Rule

of Civil Procedure 52(a). Such contention is factually mistaken. The district court

did rule on Hanks’s motion when it denied such motion. It was proper for the

district court to deny Hanks’s motion as premature, given that Rule 52(a) expressly

states that a district court “is not required to state findings or conclusions when

ruling on a motion under Rule 12.” Fed. R. Civ. P. 52(a)(3).

II

Second, the district court properly dismissed Hanks’s fraudulent

concealment claim. Such court aptly noted that Hanks’s complaint did “not allege

1 In his Reply Brief, Hanks also asks this court to review determinations related to Arizona law made in previous state-court proceedings, including the Arizona Supreme Court’s denial of further review of his claims. We do not have appellate jurisdiction over state courts’ decisions. See, e.g., D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 486 (1983); Atl. Coast Line R.R. Co. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 296 (1970).

2 with particularity the existence of any actionable concealment by any defendant

that plausibly could have caused [him] injury,” as would be necessary to survive a

motion to dismiss under Fed. R. Civ. P. 9(b). Even liberally construed, Hanks’s

complaint fell short of the “minimum threshold” of “providing . . . defendant[s]

with notice of what it is [they] allegedly did wrong.” Brazil v. U.S. Dep’t of Navy,

66 F.3d 193, 199 (9th Cir. 1995).

III

Finally, Hanks’s slander of title, quiet title, unjust enrichment, and

declaratory judgment claims constitute “objections” to the trustee’s sale within the

meaning of Ariz. Rev. Stat. § 33-811(C) insofar as they are claims which “cannot

succeed unless the sale was defective.” Zubia v. Shapiro, 408 P.3d 1248, 1251

(Ariz. 2018). Under Ariz. Rev. Stat. § 33-811(C), a party who does not

successfully enjoin a trustee’s sale waives any objection to the validity of such

sale. See BT Cap., LLC v. TD Serv. Co. of Ariz., 275 P.3d 598, 600 (Ariz. 2012).

Thus, because Hanks did not successfully enjoin the trustee’s sale, it was proper

for the district court to dismiss his slander of title, quiet title, unjust enrichment,

and declaratory judgment claims as waived by operation of Ariz. Rev. Stat. § 33-

811(C).

AFFIRMED.