Matt Jacobsen v. Clear Recon Corporation

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2018
• Docket: 17-15843
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MATT P. JACOBSEN, No. 17-15843

Plaintiff-Appellant, D.C. No. 3:15-cv-00504-MMD- VPC v.

CLEAR RECON CORPORATION; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding

Submitted September 12, 2018**

Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

Matt P. Jacobsen appeals pro se from the district court’s judgment

dismissing his action alleging federal and state law claims arising out of

foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo both the district court’s dismissal for failure to state a claim under

* 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). Fed. R. Civ. P. 12(b)(6) and summary judgment. Clemens v. DaimlerChrysler

Corp., 534 F.3d 1017, 1022 (9th Cir. 2008). We may affirm on any basis

supported by the record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.

2008), and we affirm.

The district court properly dismissed Jacobsen’s Fair Debt Collection

Practices Act claims because Jacobsen failed to allege facts sufficient to state

plausible claims for relief. See 15 U.S.C. §§ 1692f, 1692g; Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its

face” (citation and internal quotation marks omitted)).

Dismissal of Jacobsen’s quiet title claim was proper because Jacobsen failed

to allege facts sufficient to show that HSBC Bank USA, N.A. did not have

standing to foreclose on Jacobsen’s property. See Nev. Rev. Stat. § 40.010;

Chapman v. Deutsche Bank Nat’l Tr. Co., 302 P.3d 1103, 1106 (Nev. 2013) (“A

plea to quiet title [under Nevada law] does not require any particular elements, but

each party must plead and prove his or her own claim to the property in question

and a plaintiff’s right to relief therefore depends on superiority of title.” (citation

and internal quotation marks omitted)); Edelstein v. Bank of New York Mellon, 286

P.3d 249, 260-61 (Nev. 2012) (explaining that Nevada law permits the severance

and independent transfer of deeds of trusts and promissory notes without impairing

2 17-15843 the loan beneficiary’s right to ultimately foreclose, and that MERS’s assignment of

the deed of trust along with the promissory note demonstrates valid transfer of both

instruments).

Dismissal of Jacobsen’s cancellation of assignment claim was proper

because Jacobsen failed to allege facts sufficient to show that the assignment was

defective. See Iqbal, 556 U.S. at 678; Edelstein, 286 P.3d at 260-61.

The district court did not abuse its discretion by taking judicial notice of the

title documents. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.

2001) (setting forth standard review and explaining the circumstances in which the

district court may take judicial notice of documents extraneous to the pleadings in

ruling on a motion to dismiss for failure to state a claim).

Contrary to Jacobsen’s contention, the district court did not err by

considering a declaration of an HSBC employee in ruling on Jacobsen’s claim

under Nev. Rev. Stat. § 107.460, because HSBC moved for summary judgment in

the alternative and, in ruling on this claim, the district court applied the summary

judgment standard.

The district court did not abuse its discretion by dismissing Jacobsen’s

complaint without leave to amend because amendment would have been futile.

See United Bhd. of Carpenters & Joiners of Am. v. Bldg. & Const. Trades Dep’t,

AFL–CIO, 770 F.3d 834, 845 (9th Cir. 2014) (setting forth standard of review and

3 17-15843 explaining that dismissal without leave to amend is not an abuse of discretion if

amendment would be futile).

AFFIRMED.

4 17-15843