Paul Moseley v. Citimortgage Inc.

Ninth Circuit

Paul Moseley v. Citimortgage Inc.

671 F. App'x 1008

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 22, 2016

Docket15-35210

StatusUnpublished

Cited by1 cases

This text of 671 F. App'x 1008 (Paul Moseley v. Citimortgage Inc.) 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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Paul Moseley v. Citimortgage Inc., 671 F. App'x 1008 (9th Cir. 2016).

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Opinion

MEMORANDUM **

Paul Moseley appeals pro se from the district court’s judgment dismissing his action alleging state and federal claims aris- *1009 mg from defendant’s alleged improper failure to discharge his mortgage loan. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and we may affirm on any ground supported by the record. Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 554 (9th Cir. 2016). We affirm.

The district court properly dismissed Moseley’s claim under Washington Uniform Commercial Code § 3-603 because Moseley is neither an indorser nor an accommodation party under the deed of trust, and because a personal check with “ETF Only” written on it does not constitute an unconditional tender. See Wash. Rev. Code § 62A.3-603(b) (“If tender of a payment of an obligation to pay an instrument is made ... and the tender is refused, there is a discharge, to the extent of the amount of the tender, of the obligation of an indorser or accommodation party having right of recourse with respect to the obligation to which the tender relates.” (emphasis added)); id. § 62A.3-204(b) (defining “indorser”); id. § 62A.3-419 (discussing “accommodation party”); see also Wash. Rev. Code § 62A.3-106(a) (“[A] promise ... is unconditional unless it states ... an express condition to payment....”); Jones v. Best, 134 Wash.2d 232, 950 P.2d 1, 6-7 (1998) (en banc) (“We have held that tender of the amount due must be unconditional in order to stop interest from running.”).

We lack jurisdiction to consider the district court’s award of attorney’s fees. See Hunt v. City of Los Angeles, 638 F.3d 703, 719 (9th Cir. 2011) (“[A] supplemental notice of appeal is required for us to have jurisdiction over an attorney fees issue that becomes final subsequent to the initial notice of appeal.” (citation and emphasis omitted)).

Moseley’s motion to strike CitiMort-gage’s answering brief, filed on November 9, 2015, and request for a mandatory judicial notice, filed on December 4, 2015, are denied.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM **

Paul Moseley appeals pro se from the district court’s judgment dismissing his action alleging state and federal claims aris- *1009 mg from defendant’s alleged improper failure to discharge his mortgage loan. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and we may affirm on any ground supported by the record. Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 554 (9th Cir. 2016). We affirm.

The district court properly dismissed Moseley’s claim under Washington Uniform Commercial Code § 3-603 because Moseley is neither an indorser nor an accommodation party under the deed of trust, and because a personal check with “ETF Only” written on it does not constitute an unconditional tender. See Wash. Rev. Code § 62A.3-603(b) (“If tender of a payment of an obligation to pay an instrument is made ... and the tender is refused, there is a discharge, to the extent of the amount of the tender, of the obligation of an indorser or accommodation party having right of recourse with respect to the obligation to which the tender relates.” (emphasis added)); id. § 62A.3-204(b) (defining “indorser”); id. § 62A.3-419 (discussing “accommodation party”); see also Wash. Rev. Code § 62A.3-106(a) (“[A] promise ... is unconditional unless it states ... an express condition to payment....”); Jones v. Best, 134 Wash.2d 232, 950 P.2d 1, 6-7 (1998) (en banc) (“We have held that tender of the amount due must be unconditional in order to stop interest from running.”).

We lack jurisdiction to consider the district court’s award of attorney’s fees. See Hunt v. City of Los Angeles, 638 F.3d 703, 719 (9th Cir. 2011) (“[A] supplemental notice of appeal is required for us to have jurisdiction over an attorney fees issue that becomes final subsequent to the initial notice of appeal.” (citation and emphasis omitted)).

Moseley’s motion to strike CitiMort-gage’s answering brief, filed on November 9, 2015, and request for a mandatory judicial notice, filed on December 4, 2015, are denied.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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