Eva Futch v. Bac Home Loans Servicing

Ninth Circuit

Eva Futch v. Bac Home Loans Servicing

573 F. App'x 636

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 19, 2014

Docket11-17573

StatusUnpublished

This text of 573 F. App'x 636 (Eva Futch v. Bac Home Loans Servicing) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Eva Futch v. Bac Home Loans Servicing, 573 F. App'x 636 (9th Cir. 2014).

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Opinion

MEMORANDUM ***

Eva M. Futch appeals pro se from the district court’s judgment dismissing her diversity action arising out of foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. King v. California, 784 F.2d 910, 912 (9th Cir.1986). We affirm.

The district court properly dismissed Futch’s wrongful foreclosure and quiet title claims because Futch did not allege facts showing that she was not in default on her loan when defendants initiated non judicial foreclosure proceedings. See Breliant v. Preferred Equities Corp., 112 Nev. 663, 918 P.2d 314, 318 (1996) (per curiam) (“In a quiet title action, the burden of proof rests with the plaintiff to prove good title in himself.”); Collins v. Union Fed. Sav. & Loan Ass’n, 99 Nev. 284, 662 P.2d 610, 623 (1983) (wrongful foreclosure claim requires allegation that a lender exercised the power of sale and foreclosed upon property when no failure of performance existed on the part of the borrower).

The district court properly dismissed Futch’s civil conspiracy and injunctive and declaratory relief claims after dismissing the underlying causes of action. See, e.g., Eikelberger v. Tolotti, 96 Nev. 525, 611 *637 P.2d 1086, 1088 (1980) (conspiracy action for damages generally must be based on a viable, independent cause of action).

Futch’s contentions that defendants lacked standing to pursue foreclosure, and that the assignments transferring the interest in the promissory note and deed of trust are invalid, in part because of the use of Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary of the deed of trust and lender’s nominee, are foreclosed by Edelstein v. Bank of New York Mellon, 286 P.3d 249, 259-60, 262 (Nev.2012) (en banc) (separating the instruments does not permanently bar foreclosure, and an entity has authority to pursue foreclosure when it is entitled to enforce both the deed of trust and the note); see also Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1044 (9th Cir.2011) (MERS may act as a beneficiary of the trust deed).

AFFIRMED.

***

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM ***

Eva M. Futch appeals pro se from the district court’s judgment dismissing her diversity action arising out of foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. King v. California, 784 F.2d 910, 912 (9th Cir.1986). We affirm.

The district court properly dismissed Futch’s wrongful foreclosure and quiet title claims because Futch did not allege facts showing that she was not in default on her loan when defendants initiated non judicial foreclosure proceedings. See Breliant v. Preferred Equities Corp., 112 Nev. 663, 918 P.2d 314, 318 (1996) (per curiam) (“In a quiet title action, the burden of proof rests with the plaintiff to prove good title in himself.”); Collins v. Union Fed. Sav. & Loan Ass’n, 99 Nev. 284, 662 P.2d 610, 623 (1983) (wrongful foreclosure claim requires allegation that a lender exercised the power of sale and foreclosed upon property when no failure of performance existed on the part of the borrower).

The district court properly dismissed Futch’s civil conspiracy and injunctive and declaratory relief claims after dismissing the underlying causes of action. See, e.g., Eikelberger v. Tolotti, 96 Nev. 525, 611 *637 P.2d 1086, 1088 (1980) (conspiracy action for damages generally must be based on a viable, independent cause of action).

Futch’s contentions that defendants lacked standing to pursue foreclosure, and that the assignments transferring the interest in the promissory note and deed of trust are invalid, in part because of the use of Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary of the deed of trust and lender’s nominee, are foreclosed by Edelstein v. Bank of New York Mellon, 286 P.3d 249, 259-60, 262 (Nev.2012) (en banc) (separating the instruments does not permanently bar foreclosure, and an entity has authority to pursue foreclosure when it is entitled to enforce both the deed of trust and the note); see also Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1044 (9th Cir.2011) (MERS may act as a beneficiary of the trust deed).

AFFIRMED.

***

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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573 F. App'x 636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eva-futch-v-bac-home-loans-servicing-ca9-2014.

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