FILED
NOT FOR PUBLICATION OCT 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
W. MARK FRAZER; KONILYNN No. 12-35884
FRAZER,
D.C. No. 3:11-cv-05954-BHS
Appellants,
v. MEMORANDUM*
DEUTSCHE BANK NATIONAL TRUST
COMPANY; NORTHWEST TRUSTEE
SERVICES INC.,
Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted October 14, 2014**
Before: LEAVY, GOULD, and BERZON, Circuit Judges.
Chapter 7 debtors W. Mark Frazer and Konilynn Frazer appeal pro se from
the district court’s judgment affirming the bankruptcy court’s summary judgment
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissing the Frazers’ adversary proceeding against Northwest Trustee Services
Inc. We have jurisdiction under 28 U.S.C. § 158(d). We review independently the
bankruptcy court’s decision without deference to the district court’s
determinations. Leichty v. Neary (In re Strand), 375 F.3d 854, 857 (9th Cir. 2004).
We review de novo the bankruptcy court’s conclusions of law and for clear error
its factual findings. Id. We affirm.
The bankruptcy court properly granted summary judgment to appellee
Northwest Trustee Services Inc. because the Frazers introduced no evidence to
raise a genuine dispute of material fact as to whether appellee violated the duty of
good faith imposed on a trustee. See Trujillo v. Nw. Tr. Servs., Inc., 326 P.3d 768,
774 (Wash. Ct. App. 2014) (“Absent conflicting evidence, the declaration [of a
note holder to a trustee] should be taken as true.”); see also Wash. Rev. Code
§ 61.24.030(7) (authorizing a trustee to rely on a beneficiary declaration as
evidence that a beneficiary is the owner of a note). Contrary to the Frazers’
contention, they had ample time to oppose appellee’s motion for summary
judgment in the bankruptcy court. See Bankr. W.D. Wash. R. 9013-1(d)(2)(D)
(providing at least 28 days between the filing of a summary judgment motion and
the hearing).
We reject the Frazers’ contentions concerning fraud and collusion among
2 12-35884
appellee Northwest Trustee Services Inc., its legal counsel, Deutsche Bank
National Trust Services Company, and Wells Fargo.
We do not consider any documents attached to the Frazers’ opening brief
that are not part of the district court record. See Kirshner v. Uniden Corp. of Am.,
842 F.2d 1074, 1077 (9th Cir. 1988).
Northwest Trustee Services Inc.’s motion to take judicial notice of the
extrinsic materials submitted with the Frazers’ opening brief, filed on February 20,
2013, is denied as unnecessary.
Northwest Trustee Services Inc.’s request that the court permit briefing on
attorney’s fees and costs, set forth in its answering brief, is denied without
prejudice. See Fed. R. App. P. 38 (requiring separately filed motion for damages
and costs on appeal).
AFFIRMED.
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