Rodrick Silas v. Select Portfolio Servicing Inc

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 16, 2018
• Docket: 17-16689
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RODRICK J. SILAS, No. 17-16689

Plaintiff-Appellant, D.C. No. 1:17-cv-00012-DAD-JLT

v. MEMORANDUM* SELECT PORTFOLIO SERVICING, INC. and U.S. BANK, N.A., successor trustee to LaSalle Bank National Association, on behalf of the holders of Bear Steams Asset Backed Securities I Trust 2006-AQ1, Asset- Backed Certificates Series 2006-AQ1,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted March 13, 2018** San Francisco, California

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Rodrick J. Silas appeals pro se from the district court’s post-judgment orders

* 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). denying his motions to reconsider the dismissal of his action alleging federal and

state law claims arising out of foreclosure proceedings. We have jurisdiction under

28 U.S.C. § 1291. We review for an abuse of discretion. Sch. Dist. No. 1J

Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We may

affirm on any basis supported by the record, Johnson v. Riverside Healthcare Sys.,

LP, 534 F.3d 1116, 1121 (9th Cir. 2008), and we affirm.

The district court did not abuse its discretion by denying Silas’s motion for

reconsideration under Federal Rules of Civil Procedure 60(b)(1) and (b)(6) because

Silas failed to establish any basis for relief. See Lehman v. United States, 154 F.3d

1010, 1017 (9th Cir. 1998) (Rule 60(b)(6) is to be used “sparingly as an equitable

remedy to prevent manifest injustice” (citation omitted)); Crateo, Inc. v. Intermark,

Inc., 536 F.2d 862, 870 n.15 (9th Cir. 1976) (explaining that it is “not the proper

function of a Rule 60(b) motion” to “attempt[ ] to reargue the primary appeal”),

partially superseded on other grounds by Fed. R. App. P. 4. Even if the district

court erred in not reconsidering the dismissal of Silas’s Fair Debt Collection

Practices Act or wrongful foreclosure claims on the basis of res judicata, any such

error was harmless because the claims failed on their merits. See 15 U.S.C.

§§ 1692e, 1692g; In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 784 (9th

Cir. 2014) (elements of wrongful foreclosure claim under California law); see also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must

2 17-16689 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)).

The district court properly denied Silas’s motion for reconsideration under

Federal Rule of Civil Procedure 59(e) because the motion was untimely. See Fed.

R. Civ. P. 59(e) (“A motion to alter or amend judgment must be filed no later than

28 days after the entry of the judgment.”). Even if the motion was construed as a

motion under Rule 60(b), the district court properly denied the motion because

Silas failed to establish any basis for relief and any error in denying the motion was

harmless. See Lehman, 154 F.3d at 1017; Crateo, Inc., 536 F.2d at 870 n.15; Fed.

R. Civ. P. 61.

AFFIRMED.

3 17-16689