FILED JUN 05 2018
1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
2 OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT
4 5 In re: ) BAP No. NC-17-1217-FBTa )
6 JAMES AMAR SINGH, ) Bk. No. 4:15-bk-40917 )
7 Debtor. ) Adv. Pro. 4:16-ap-04026 _____________________________ )
8 )
JAMES AMAR SINGH, )
9 )
Appellant, )
10 )
v. ) MEMORANDUM* 11 )
WELLS FARGO BANK, N.A., )
12 )
Appellee. )
13 ______________________________) 14 Argued and Submitted on May 25, 2018 at San Francisco, California 15 Filed – June 5, 2018
16 Appeal from the United States Bankruptcy Court 17 for the Northern District of California 18 Honorable William J. Lafferty, Bankruptcy Judge, Presiding 19 Appearances: Appellant James Amar Singh, pro se, on the brief;
20 James Z. Margolis argued on behalf of appellant;
Robert Collings Little of Anglin Flewelling 21 Rasmussen Campbell & Trytten LLP argued for appellee Wells Fargo Bank, N.A.
22 23 Before: FARIS, BRAND, and TAYLOR, Bankruptcy Judges. 24 25 26 * This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 28 9th Cir. BAP Rule 8024-1.
1 INTRODUCTION 2 Appellant James Amar Singh’s nine-year quest to stave off 3 foreclosure of his home has engendered at least ten bankruptcy 4 cases and four lawsuits. In this latest iteration, Mr. Singh 5 sought chapter 131 bankruptcy protection and filed an adversary 6 proceeding against appellee Wells Fargo Bank, N.A. (“Wells 7 Fargo”), seeking a declaration that Wells Fargo lacked any rights 8 in his real property due to an earlier foreclosure that a state 9 court jury found to be improper. In a thoroughly reasoned 10 decision, the bankruptcy court granted Wells Fargo’s motion to 11 dismiss the adversary proceeding with prejudice. 12 On appeal, Mr. Singh largely ignores the bankruptcy court’s 13 analysis and continues to insist, incorrectly, that the jury 14 verdict in his favor permanently bars Wells Fargo’s interest in 15 his property. We AFFIRM. 16 FACTUAL BACKGROUND 17 A. Prelitigation events 18 In January 2006, Mr. Singh obtained a $500,000 loan from 19 Wells Fargo’s predecessor, which was secured by a deed of trust 20 encumbering his residential real property located in Oakland, 21 California (the “Property”). (We will refer to Wells Fargo and 22 its predecessors collectively as “Wells Fargo.”) Mr. Singh 23 defaulted on the loan in December 2009, and Wells Fargo recorded 24 a notice of default. The foreclosure sale of the Property was 25
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26 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all 27 “Rule” references are to the Federal Rules of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal 28 Rules of Civil Procedure.
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1 scheduled for August 8, 2010. 2 B. State and federal litigation 3 In the span of five years, Mr. Singh initiated ten 4 bankruptcy cases, most of which were quickly dismissed for 5 failure to file documents. He filed his first petition on 6 August 5, 2010, which stayed the pending foreclosure sale and 7 allowed him to begin prosecuting his string of civil cases. 8 1. The first lawsuit 9 In October 2011, Mr. Singh filed suit (the “First Lawsuit”) 10 in state court against Wells Fargo to challenge the foreclosure. 11 He asserted six causes of action: (1) elder financial abuse, 12 (2) wrongful foreclosure, (3) breach of contract, (4) intentional 13 infliction of emotional distress, (5) violation of business and 14 professions code, and (6) quiet title. Wells Fargo removed the 15 First Lawsuit to federal district court. After the district 16 court denied Mr. Singh’s motion for an injunction barring Wells 17 Fargo from conducting a foreclosure sale, Mr. Singh voluntarily 18 dismissed the First Lawsuit pursuant to Civil Rule 41(a). 19 In July 2012, Wells Fargo purchased the Property at a 20 foreclosure sale and recorded a trustee’s deed upon sale 21 (“Trustee’s Deed”). Mr. Singh contends that the foreclosure sale 22 was invalid. He claims that the sale was cancelled when the 23 auctioneer received copies of Mr. Singh’s eighth bankruptcy 24 petition that was filed earlier that day. (Mr. Singh had filed 25 four bankruptcy petitions in the year preceding the foreclosure 26 sale.) Mr. Singh claims that, nevertheless, Wells Fargo 27 “illegally” purchased the Property after all other bidders had 28 left.
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1 2. The second lawsuit 2 In December 2012, Mr. Singh filed another lawsuit (the 3 “Second Lawsuit”) against Wells Fargo in state court. He alleged 4 seven causes of action: (1) quiet title, (2) declaratory relief, 5 (3) preliminary and permanent injunction, (4) cancellation of 6 instruments, (5) wrongful foreclosure, (6) unjust enrichment, and 7 (7) fraud. 8 Wells Fargo again removed the case to the federal district 9 court. The district court dismissed Mr. Singh’s complaint 10 without leave to amend for failure to state a claim upon which 11 relief could be granted. Mr. Singh appealed the decision to the 12 Ninth Circuit Court of Appeals, which affirmed the dismissal in 13 December 2016. 14 3. The unlawful detainer action 15 Following the foreclosure sale, Wells Fargo filed an 16 unlawful detainer action (the “Unlawful Detainer Action”) in 17 state court. Mr. Singh apparently challenged the propriety of 18 the sale on grounds that the record does not disclose. A jury 19 determined that Wells Fargo did not purchase the Property “at a 20 properly conducted trustee sale” and that Wells Fargo “shall take 21 nothing by [its] Complaint” (the “Unlawful Detainer Judgment”). 22 Wells Fargo then recorded a notice of rescission of the 23 Trustee’s Deed (“Notice of Rescission”) as a first step toward a 24 second foreclosure sale. 25 4. The third lawsuit 26 In March 2015, Mr. Singh filed yet another lawsuit (the 27 “Third Lawsuit”) in state court, alleging that Wells Fargo had no 28 right to resume the foreclosure process because the Unlawful
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1 Detainer Judgment had claim preclusive effect. He asserted 2 claims for: (1) conversion, (2) slander of title, (3) fraud, 3 (4) infliction of emotional distress, (5) elder abuse, 4 (6) declaratory relief, and (7) preliminary and permanent 5 injunction. He alleged that he owned the Property free and clear 6 of Wells Fargo’s encumbrances. After Wells Fargo removed the 7 Third Lawsuit to federal district court, Mr. Singh voluntarily 8 dismissed it. 9 C. The chapter 13 bankruptcy case and adversary proceeding 10 Also in March 2015, Mr. Singh filed the underlying 11 chapter 13 bankruptcy case. This was his tenth bankruptcy 12 filing. 13 Mr. Singh initiated an adversary proceeding against Wells 14 Fargo, alleging that the Unlawful Detainer Judgment conclusively 15 established that Wells Fargo had no right to record the Trustee’s 16 Deed following the July 2012 foreclosure sale and, therefore, had 17 no right to pursue further foreclosure actions. He also alleged 18 that Wells Fargo did not properly rescind the Trustee’s Deed. 19 The amended adversary complaint asserted nine causes of action: 20 (1) injunctive relief, (2) declaratory relief, (3) turnover of 21 unlawfully conveyed real property, (4) slander of title, 22 (5) financial elder abuse fraud, (6) quiet title, (7) fraud, 23 malice, and oppression, (8) violation of business and professions 24 code section 17200, and (9) accounting. 25 D. The motion to dismiss 26 Wells Fargo moved to dismiss the adversary proceeding under 27 Civil Rule 12(b)(6), made applicable to bankruptcy by Rule
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1 7012(b) (“Motion to Dismiss”).2 It argued that the complaint 2 failed to state a claim upon which relief could be granted 3 because, among other things, Mr. Singh voluntarily dismissed 4 similar claims twice before in the First and Third Lawsuits, 5 which barred further adjudication under Civil Rule 41(a)(1)(B), 6 made applicable in bankruptcy by Rule 7041; he failed to make a 7 valid tender of the outstanding debt, thereby precluding 8 equitable relief; the Unlawful Detainer Judgment did not preclude 9 Wells Fargo from continuing its foreclosure efforts; and the 10 Notice of Rescission was proper. 11 In response, Mr. Singh argued that Wells Fargo “stole [his] 12 Property through a fraudulent sale” and filed “a Bogus Notice of 13 Rescission of Trustee’s Deed Upon Sale[.]” He argued that claim 14 preclusion did not apply to the slander of title claim, which he 15 alleged for the first time in the adversary complaint. In the 16 alternative, he asked that the bankruptcy court allow him leave 17 to amend the complaint. 18 At the hearing on the Motion to Dismiss, counsel for Wells 19 Fargo reminded the court that, in the time that the Motion to 20 Dismiss was pending, the Ninth Circuit affirmed the district 21 court’s dismissal of the Second Lawsuit; as a result, claim 22 preclusion barred relitigation of the claims raised in the Second 23 Lawsuit. In response, Mr. Singh’s counsel argued briefly that 24 claim preclusion was inapplicable because “the matters that we’re 25 26 2 The bankruptcy court dismissed the underlying bankruptcy 27 case in May 2016 but retained jurisdiction over the adversary proceeding. Mr. Singh later filed his eleventh bankruptcy 28 petition in April 2018.
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1 raising in this case are matters that came about after [the 2 Unlawful Detainer Judgment].” 3 Following the hearing, the bankruptcy court issued its Order 4 Granting Motion to Dismiss First Amended Complaint (“Dismissal 5 Order”). 6 First, the bankruptcy court held that claim preclusion 7 applied to all of the causes of action except the quiet title 8 claim, “because the Second Lawsuit was fully adjudicated 9 adversely to the Plaintiff by both the District Court and the 10 United States Court of Appeals for the Ninth Circuit . . . and 11 contained claims based on the same underlying facts as alleged in 12 the [adversary complaint].” 13 Second, the bankruptcy court held that the “Two Dismissal 14 Rule” of Civil Rule 41(a)(1)(B) barred relitigation of the claims 15 previously asserted (and dismissed) in the First and Third 16 Lawsuits. 17 Third, the bankruptcy court held that Mr. Singh’s failure to 18 tender payment of the debt mandated dismissal of the equitable 19 claims - injunctive relief, declaratory relief, quiet title, 20 unfair competition, and accounting. 21 Finally, the bankruptcy court considered the merits of the 22 individual claims and determined that none stated a claim upon 23 which relief could be granted. The bankruptcy court therefore 24 dismissed the adversary complaint with prejudice. 25 Mr. Singh timely appealed. 26 JURISDICTION 27 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 28 §§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C.
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1 § 158. 2 ISSUE 3 Whether the bankruptcy court erred in dismissing the 4 complaint without leave to amend. 5 STANDARDS OF REVIEW 6 We review de novo a bankruptcy court’s decision to grant a 7 motion to dismiss a complaint under Civil Rule 12(b)(6). See 8 Barnes v. Belice (In re Belice), 461 B.R. 564, 572 (9th Cir. BAP 9 2011). De novo review is independent and gives no deference to 10 the trial court’s conclusion. Roth v. Educ. Credit Mgmt. Agency 11 (In re Roth), 490 B.R. 908, 915 (9th Cir. BAP 2013). 12 A decision to dismiss a complaint without leave to amend and 13 with prejudice is reviewed for abuse of discretion. See Tracht 14 Gut, LLC v. L.A. Cty. Treasurer & Tax Collector (In re Tracht 15 Gut, LLC), 836 F.3d 1146, 1150 (9th Cir. 2016). To determine 16 whether the bankruptcy court has abused its discretion, we 17 conduct a two-step inquiry: (1) we review de novo whether the 18 bankruptcy court “identified the correct legal rule to apply to 19 the relief requested” and (2) if it did, whether the bankruptcy 20 court’s application of the legal standard was illogical, 21 implausible, or without support in inferences that may be drawn 22 from the facts in the record. United States v. Hinkson, 585 F.3d 23 1247, 1262–63 & n.21 (9th Cir. 2009) (en banc). 24 DISCUSSION 25 A. Civil Rule 12(b)(6) requires Mr. Singh to state a claim upon which relief can be granted.
26 27 Under Civil Rule 12(b)(6), a court must dismiss a complaint 28 if it fails to state a claim upon which relief can be granted.
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1 To survive a motion to dismiss, the plaintiff must allege “enough 2 facts to state a claim to relief that is plausible on its face.” 3 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is 4 facially plausible when the plaintiff pleads facts that “allow[ ] 5 the court to draw the reasonable inference that the defendant is 6 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 7 662, 678 (2009) (citation omitted). While courts do not require 8 “heightened fact pleading of specifics,” a plaintiff must allege 9 facts sufficient to “raise a right to relief above the 10 speculative level.” Twombly, 550 U.S. at 555, 570. 11 In deciding whether the complaint states a claim upon which 12 relief can be granted, the court accepts the allegations as true 13 and draws all reasonable inferences in favor of the plaintiff. 14 See Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). 15 But the court is not required to accept as true “allegations that 16 are merely conclusory, unwarranted deductions of fact, or 17 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 18 536 F.3d 1049, 1055 (9th Cir. 2008). 19 B. Mr. Singh’s basic argument – that the Unlawful Detainer Judgment destroyed Wells Fargo’s deed of trust – is wrong.
20 21 The crux of Mr. Singh’s arguments on appeal is that the 22 Unlawful Detainer Judgment stripped Wells Fargo of its rights in 23 the Property and precludes it from taking any further action to 24 foreclose on the Property. He is mistaken. 25 Mr. Singh argues that Wells Fargo lacks the authority to 26 foreclose on the Property “because Wells Fargo lost the unlawful 27 detainer action[.]” He also contends that the claims that rely 28 on the wrongful foreclosure claims (such as the elder abuse
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1 claim, quiet title claim, and slander of title claim) should have 2 survived the Motion to Dismiss for the same reason. 3 But Mr. Singh’s position rests on a false premise: that the 4 Unlawful Detainer Judgment extinguished Wells Fargo’s rights in 5 the Property. The jury’s finding that a procedural deficiency 6 voided the July 2012 foreclosure sale does not mean that Wells 7 Fargo is forever barred from conducting a proper foreclosure. 8 Therefore, all of the claims that rely on his wrongful 9 foreclosure argument necessarily fail.3 10 Similarly, Mr. Singh contends that the bankruptcy court 11 erred because the Unlawful Detainer Judgment should have been 12 given claim preclusive effect in his favor. But the jury only 13 found that the July 2012 foreclosure sale was defective. The 14 Unlawful Detainer Judgment does not provide, for example, that 15 Mr. Singh is entitled to a judgment quieting title in him free of 16 the deed of trust. It has a more narrow effect than Mr. Singh 17 believes and does not support his claims in the adversary 18 proceeding.4 The Ninth Circuit was similarly unswayed by this 19 argument in deciding the appeal of the judgment in the Second 20 21 3 Perhaps relatedly, Mr. Singh argues that Wells Fargo could 22 not foreclose because it violated the conditions precedent to a foreclosure under the deed of trust. It is not clear that he 23 made this argument in the bankruptcy court; if he did not, the argument is waived. But even if he did, he does not explain this 24 argument. He cites a lengthy paragraph purportedly from the deed of trust but does not state how Wells Fargo allegedly violated 25 it. We can discern no error based on this argument. 26 4 In his reply brief, Mr. Singh complains that Wells Fargo 27 refused to agree to a loan modification. He offers no authority for the proposition that Wells Fargo had any legal obligation to 28 modify the terms of the loan.
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1 Lawsuit, stating that it “reject[s] without merit . . . Singh’s 2 contentions regarding . . . the preclusive effect of the parties’ 3 state unlawful detainer action.” We are bound by the Ninth 4 Circuit’s rejection of Mr. Singh’s preclusion arguments. 5 In short, Wells Fargo’s errors in its first attempt to 6 foreclose do not entitle Mr. Singh to a free house. 7 C. Mr. Singh fails to address the majority of the bankruptcy court’s Dismissal Order.
8 9 Mr. Singh utterly fails to address the bankruptcy court’s 10 major reasons for dismissing his complaint. As such, those 11 arguments are waived. See Padgett v. Wright, 587 F.3d 983, 986 12 n.2 (9th Cir. 2009) (per curiam) (an appellate court “will not 13 ordinarily consider matters on appeal that are not specifically 14 and distinctly raised and argued in appellant’s opening brief”); 15 Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n 16 appeal, arguments not raised by a party in its opening brief are 17 deemed waived.”); Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 18 977 (9th Cir. 1994) (“We will not manufacture arguments for an 19 appellant, and a bare assertion does not preserve a claim 20 . . . .”). While we liberally construe a pro se debtor’s 21 appellate brief, see Nordeen v. Bank of Am., N.A. (In re 22 Nordeen), 495 B.R. 468, 483 (9th Cir. BAP 2013), we will not 23 question the parts of the bankruptcy court’s decision that 24 Mr. Singh does not even discuss. 25 1. Mr. Singh does not challenge the court’s ruling that claim preclusion barred relitigation of all claims 26 except for the quiet title claim. 27 Mr. Singh ignores the bankruptcy court’s first reason for
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1 dismissal: that claim preclusion5 barred relitigation of the 2 claims raised in the Second Lawsuit (other than the quiet title 3 claim). 4 Under California law, claim preclusion “prevents 5 relitigation of the same cause of action in a second suit between 6 the same parties or parties in privity with them.” Mycogen Corp. 7 v. Monsanto Co., 28 Cal. 4th 888, 896 (2002). Claim preclusion 8 requires that: (1) the second lawsuit must involve the same 9 “cause of action” as the first lawsuit; (2) the first lawsuit 10 must have resulted in a final judgment on the merits; and (3) the 11 party to be precluded must have been a party, or in privity with 12 a party, to the first lawsuit. See San Diego Police Officers’ 13 Ass’n v. San Diego City Emps.’ Ret. Sys., 568 F.3d 725, 734 (9th 14 Cir. 2008). Courts may inquire into fairness and public policy 15 before applying the doctrine of claim preclusion, but that 16 inquiry is not mandatory. See Roberts v. Andrews Family 17 Revocable Tr. (In re Andrews), BAP No. EC-13-1385-JuTaKu, 2014 WL 18 2547808, at *8 (9th Cir. BAP June 5, 2014), aff’d, 668 F. App’x 19 757 (9th Cir. 2016) (citing Kopp v. Fair Political Practices 20 Comm’n, 11 Cal. 4th 607, 620–22 (1995)). 21 First, Wells Fargo established an identity of claims between 22 the adversary proceeding and the Second Lawsuit. California 23 courts employ the “primary rights theory” to determine if two 24 25 5 Although the parties use the term “res judicata,” we 26 employ the term “claim preclusion,” which has “supplanted the term ‘res judicata’ that was traditionally used in a 27 now-obsolete, non-generic sense . . . .” The Alary Corp. v. Sims (In re Associated Vintage Grp., Inc.), 283 B.R. 549, 555 (9th 28 Cir. BAP 2002).
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1 actions constitute a single cause of action. “[A] ‘cause of 2 action’ under the primary rights theory considers the broader 3 question of the injury or harm suffered. ‘The most salient 4 characteristic of a primary right is that it is indivisible: the 5 violation of a single primary right gives rise to but a single 6 cause of action.’” Id. at *9 (quoting Mycogen Corp., 28 Cal. 4th 7 at 904). Therefore, “[i]f an action involves the same injury to 8 the plaintiff and the same wrong by the defendant then the same 9 primary right is at stake even if in the second suit, the 10 plaintiff pleads different theories of recovery, seeks different 11 forms of relief and/or adds new facts supporting recovery.” Id. 12 (quoting Eichman v. Fotomat Corp., 147 Cal. App. 3d 1170, 1174 13 (1983)); see Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 14 708, 714 (9th Cir. 2001) (“The central criterion in determining 15 whether there is an identity of claims between the first and 16 second adjudications is ‘whether the two suits arise out of the 17 same transactional nucleus of facts.’” (citations omitted)). 18 The bankruptcy court examined the claims adjudicated in the 19 Second Lawsuit and determined that they were identical to the 20 claims raised in the adversary proceeding, except for the quiet 21 title claim. The only change between the Second Lawsuit and the 22 adversary complaint was the Unlawful Detainer Judgment; 23 therefore, “any cause of action that relies on facts surrounding 24 the UD Lawsuit and Judgment[] would not be barred by the doctrine 25 of claim preclusion because it does not rely on the same 26 operative nucleus of facts.” We discern no error in the 27 bankruptcy court’s careful comparison of the various claims. 28 Second, there is no dispute that the Second Lawsuit resulted
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1 in a final judgment on the merits. 2 Third, Mr. Singh was the prosecuting party in both the 3 Second Lawsuit and the adversary proceeding. 4 Accordingly, the bankruptcy court correctly decided that all 5 of the claims raised in the adversary proceeding (except for the 6 quiet title claim) are barred by claim preclusion. 7 2. Mr. Singh does not challenge dismissal based on the two-dismissal rule.
8 9 Similarly, the bankruptcy court correctly dismissed the 10 slander of title claim, injunctive relief claim, fraud claim, and 11 elder abuse claim because Mr. Singh had voluntarily dismissed 12 those claims twice before. 13 Under Civil Rule 41(a)(1)(B), “if the plaintiff previously 14 dismissed any federal- or state-court action based on or 15 including the same claim, a notice of dismissal operates as an 16 adjudication on the merits.” This “two-dismissal rule” provides 17 that “a voluntary dismissal of a second action operates as a 18 dismissal on the merits if the plaintiff has previously dismissed 19 an action involving the same claims.” Commercial Space Mgmt. Co. 20 v. Boeing Co., 193 F.3d 1074, 1076 (9th Cir. 1999). 21 The bankruptcy court correctly held that the two-dismissal 22 rule barred those claims that Mr. Singh voluntarily dismissed in 23 the First and Third Lawsuits.6 Mr. Singh does not address this 24 25 6 Although Mr. Singh gave different titles to the causes of 26 action in the First and Third Lawsuits, the bankruptcy court properly determined that the claims arose out of the “same 27 transactional nucleus of facts.” For example, Mr. Singh asserted claims in the Third Lawsuit for slander of title and fraud, which 28 (continued...)
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1 reason for dismissal on appeal or discuss how the bankruptcy 2 court erred. 3 3. Mr. Singh fails to address many of the discrete reasons for dismissal.
4 5 Mr. Singh largely fails to argue that the bankruptcy court 6 erred in analyzing the individual causes of action. He 7 completely ignores the court’s reasons for dismissing: (1) First 8 Cause of Action: Injunctive Relief; (2) Second Cause of Action: 9 Declaratory Relief; (3) Third Cause of Action: Turnover of 10 Property; (4) Seventh Cause of Action: Fraud; (5) Eighth Cause of 11 Action: Violation of Business and Professions Code 17200; and 12 (6) Ninth Cause of Action: Accounting. Accordingly, he has 13 waived these issues on appeal. 14 4. Mr. Singh did not explain how the bankruptcy court erred by denying leave to amend.
15 16 Mr. Singh also fails to discuss the bankruptcy court’s 17 decision to dismiss his complaint without leave to amend. 18 The Ninth Circuit instructs that we must “consider five 19 factors in assessing whether a district court abuses its 20 discretion in dismissing a complaint without leave to amend: ‘bad 21 faith, undue delay, prejudice to the opposing party, futility of 22 amendment, and whether the plaintiff has previously amended the 23 complaint.’” Ecological Rights Found. v. Pac. Gas & Elec. Co., 24 713 F.3d 502, 520 (9th Cir. 2013) (quoting United States v. 25
6
26 (...continued)
were not explicitly asserted in the First Lawsuit. Nevertheless, 27 the bankruptcy court found that “the causes of action which rely on the facts surrounding the wrongful foreclosure . . . can be 28 dismissed pursuant to the Two Dismissal Rule.”
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1 Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011)). “Although 2 leave to amend should be given freely, a district court may 3 dismiss without leave where a plaintiff’s proposed amendments 4 would fail to cure the pleading deficiencies and amendment would 5 be futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 6 1034, 1041 (9th Cir. 2011); see Civil Rule 15(a) (“The court 7 should freely give leave when justice so requires.”). 8 The bankruptcy court determined that leave to amend would be 9 futile because Mr. Singh could not plead any viable claim. We 10 agree. As the bankruptcy court comprehensively explained, each 11 of Mr. Singh’s claims failed as a matter of law for multiple 12 reasons, and Mr. Singh did not propose any way in which he could 13 amend his complaint to avoid the many hurdles. 14 In his briefs, Mr. Singh only states that “[t]he trial court 15 erred in in [sic] dismissing the Adversary complaint without 16 leave to amend.” He also baldly states that the complaint “can 17 reasonably be amended to allege standing and to plead with 18 sufficient particularity on each of SINGH’s claims[,]” but he 19 does not explain how he would amend the complaint to cure the 20 defects. 21 We do not consider arguments that are not specifically and 22 distinctly argued in the appellant’s opening brief. See Padgett, 23 587 F.3d at 986 n.2; Bolt v. Crake (In re Riverside-Linden Inv. 24 Co.), 945 F.2d 320, 325 (9th Cir. 1991) (holding that a passing, 25 conclusory statement “did not permit the issue to be ‘fully 26 explored,’ . . . and we consider the issue waived”). Mr. Singh 27 provides no analysis, legal authority, or facts supporting his 28 assertion that he should be entitled to amend his complaint.
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1 At oral argument, counsel for Mr. Singh argued that the 2 bankruptcy court should have allowed Mr. Singh to amend his 3 complaint to allege that Wells Fargo had to start the foreclosure 4 process anew, presumably because the Unlawful Detainer Judgment 5 voided all earlier actions to foreclose on the Property. But 6 Mr. Singh did not articulate this theory to the bankruptcy court 7 or in his briefs, so we will not consider it. See Ezra v. Seror 8 (In re Ezra), 537 B.R. 924, 932 (9th Cir. BAP 2015).7 9 Accordingly, the bankruptcy court did not abuse its 10 discretion in granting the Motion to Dismiss with prejudice. 11
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12 Further, there is no reason to allow Mr. Singh to file an amended complaint based on his fear that Wells Fargo might err 13 again. As far as we can tell from the record, Mr. Singh’s serial bankruptcy filings have so far prevented Wells Fargo from 14 foreclosing again. If Wells Fargo manages to get a new 15 foreclosure off the ground, Mr. Singh could assert any proper challenges to that foreclosure at an appropriate time and in an 16 appropriate forum. Any wrongs committed in that new foreclosure would not have any bearing on the bankruptcy case in which this 17 adversary proceeding was brought (Mr. Singh’s tenth bankruptcy case) because that bankruptcy case has been dismissed. Any 18 claims arising out of the new foreclosure would be based on 19 conduct occurring after that bankruptcy case was dismissed, and those claims would not be property of the estate in the dismissed 20 bankruptcy case. Because the claims arising out of the new foreclosure would not affect the outcome of Mr. Singh’s tenth 21 bankruptcy case or the administration of his estate, the bankruptcy court likely would not have “related to” subject 22 matter jurisdiction. Cf. Montana v. Goldin (In re Pegasus Gold 23 Corp.), 394 F.3d 1189, 1193 (9th Cir. 2005) (stating that the “related to” test examines whether “the outcome of the proceeding 24 could conceivably have any effect on the estate being administered in bankruptcy”); Linkway Inv. Co. v. Olsen (In re 25 Casamont Inv’rs, Ltd.), 196 B.R. 517, 521 (9th Cir. BAP 1996) 26 (“An action is ‘related to’ a bankruptcy case if the outcome of the proceeding could conceivably alter the debtor’s rights, 27 liabilities, options or freedom of action (either positively or negatively) in such a way as to impact on the administration of 28 the bankruptcy estate.”).
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1 D. Mr. Singh fails to allege any actual injury. 2 The bankruptcy court held that Mr. Singh did not properly 3 allege any injury, which is fatal to many of his claims. 4 Mr. Singh argues on appeal that he was damaged in an unspecified 5 amount to be determined at trial. The court did not err. 6 As a general rule, a plaintiff must allege damages suffered 7 due to the allegedly improper foreclosure. See generally 8 Cervantes, 656 F.3d at 1044 (holding that plaintiffs failed to 9 state a claim where they “have not identified damages”); Simmons 10 v. Aurora Bank FSB, No. 13-cv-00482-HRL, 2016 WL 192571, at *7 11 (N.D. Cal. Jan. 15, 2016) (stating that, to state a claim for 12 wrongful foreclosure, a plaintiff must allege that “she was 13 prejudiced or harmed”). In this case, Mr. Singh alleges that he 14 suffered prejudice because “he lost his home at a foreclosure 15 sale,” which “shows prejudice” in and of itself and would 16 naturally cause anyone “emotional suffering.” But aside from 17 these vague statements, he still fails to allege how and to what 18 extent he has been actually harmed. He also argued to the 19 bankruptcy court that the property taxes on the Property had 20 increased; but it is undisputed that he has not paid taxes since 21 he defaulted on the mortgage loan. 22 Mr. Singh fails to articulate any actual injury or explain 23 how he would cure this defect if he were allowed to amend his 24 complaint. The bankruptcy court did not err in determining that 25 he did not allege actual injury. 26 E. We will not consider new arguments raised for the first time on appeal.
27 28 Mr. Singh raises a number of new arguments on appeal that he
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1 did not present to the bankruptcy court. For example, he makes 2 references to Wells Fargo’s alleged violations of the Equal 3 Credit Opportunity Act and the California Homeowners’ Bill of 4 Rights. He also raises new factual arguments, detailing Wells 5 Fargo’s alleged misapplication or miscalculation of his mortgage 6 payments, the “contrived” default, invalid assignment, and 7 improper securitization. 8 We will not consider these new arguments in the first 9 instance. We have stated that, “[o]rdinarily, federal appellate 10 courts will not consider issues not properly raised in the trial 11 courts. . . . An issue only is ‘properly raised’ if it is raised 12 sufficiently to permit the trial court to rule upon it.” In re 13 Ezra, 537 B.R. at 932 (citations omitted); see Moldo v. Matsco, 14 Inc. (In re Cybernetic Servs., Inc.), 252 F.3d 1039, 1045 n.3 15 (9th Cir. 2001) (stating that the appellate court would not 16 explore ramifications of argument because it was not raised in 17 the bankruptcy court); Levesque v. Shapiro (In re Levesque), 18 473 B.R. 331, 335 (9th Cir. BAP 2012) (“Ordinarily, if an issue 19 is not raised before the trial court, it will not be considered 20 on appeal and will be deemed waived.”). 21 Accordingly, Mr. Singh has waived these arguments.8 22
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23 We have discretion to “consider an issue raised for the first time on appeal if (1) there are exceptional circumstances 24 why the issue was not raised in the trial court, (2) the new issue arises while the appeal is pending because of a change in 25 the law, or (3) the issue presented is purely one of law and the 26 opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.” In re Ezra, 27 537 B.R. at 932-33 (quoting Franchise Tax Bd. v. Roberts (In re Roberts), 175 B.R. 339, 345 (9th Cir. BAP 1994)). Mr. Singh has 28 (continued...)
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1 CONCLUSION 2 The bankruptcy court did not err when it dismissed 3 Mr. Singh’s adversary complaint with prejudice. We AFFIRM.9 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 8 (...continued)
23 not identified any exceptional circumstances excusing his failure to raise any of these issues below. He also does not identify 24 any change in law, assert that the issue is purely one of law, or discuss prejudice Wells Fargo may face.
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26 As an additional justification for the dismissal of Mr. Singh’s claims for equitable relief, the bankruptcy court 27 held that he failed to tender payment of the debt. We do not reach this issue because we are affirming the decision on several 28 other, independently sufficient grounds.