Kelly Ancheta v. Mers

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 2018
• Docket: 17-16755
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 12 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KELLY GRACE ANCHETA, No. 17-16755

Plaintiff-Appellant, D.C. No. 4:16-cv-06520-YGR

v. MEMORANDUM* MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted July 10, 2018**

Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.

Kelly Grace Ancheta appeals from the district court’s order dismissing her

diversity action alleging violations of state law arising from the foreclosure of her

home. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s dismissal under Fed. R. Civ. P. 12(b)(6). AE ex rel. Hernandez v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes ths case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). We affirm.

The district court properly dismissed Ancheta’s wrongful foreclosure claims

arising from (1) defendants’ allegedly improper assignment of the deed of trust,

and (2) Mortgage Electronic Registration System’s alleged lack of “agency

relationship” with the beneficiary, because these defects render any such

assignment voidable, not void. See Yvanova v. New Century Mortg. Corp., 365

P.3d 845, 852 (Cal. 2016) (explaining that a voidable transaction is subject to

ratification by the parties); Saterbak v. JPMorgan Chase Bank, N.A., 199 Cal. Rptr.

3d 790, 796 (Ct. App. 2016) (untimely assignment to a securitized trust made after

the trust’s closing date is merely voidable); see also Chavez v. Indymac Mortg.

Servs., 162 Cal. Rptr. 3d 382, 390 (Ct. App. 2013) (elements of wrongful

foreclosure claim under California law). We reject as without merit Ancheta’s

contention that the assignments were invalid because they were robo-signed. See

Mendoza v. JPMorgan Chase Bank, N.A., 212 Cal. Rptr. 3d 1, 15 (Ct. App. 2016)

(homeowners lack standing to challenge the validity of robo-signatures); see also

Chavez v. Indymac Mortg. Servs., 162 Cal. Rptr. 3d 382, 390 (Ct. App. 2013)

(elements of wrongful foreclosure claim under California law).

The district court did not abuse its discretion by denying Ancheta leave to

amend because amendment would be futile. See AE ex rel. Hernandez, 666 F.3d at

636 (setting forth standard of review and explaining that a district court may deny

2 17-16755 leave to amend where the proposed amendments would be futile).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 17-16755