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NOT FOR PUBLICATION OCT 21 2014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. 12-35502
FRAZER,
D.C. No. 3:11-cv-05454-RBL
Appellants,
v. MEMORANDUM*
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee for Morgan
Stanley ABS Capital I Inc Trust 2006-NC4
its Successors in Interest, Agents,
Assignees and/or Assignors and through
its Servicing Agent Wells Fargo Bank
N.A.; NORTHWEST TRUSTEE
SERVICES INC.,
Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted October 14, 2014**
Before: LEAVY, GOULD, and BERZON, Circuit Judges.
*
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).
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
dismissing the Frazers’ adversary proceeding against Deutsche Bank National
Trust Company. 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
Deutsche Bank National Trust because the Frazers’ loan is in default, and appellee
had physical possession of the mortgage note indorsed in blank and therefore had
the power to enforce the mortgage note. See Wash. Rev. Code § 61.24.030(7) (a
declaration by the beneficiary stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust shall be sufficient
proof for nonjudicial foreclosure); Trujillo v. Nw. Tr. Servs., Inc., 326 P.3d 768,
774 (Wash. Ct. App. 2014) (holding that “[a]bsent conflicting evidence, the
declaration [of a note holder under Wash. Rev. Code § 61.24.030(7)] should be
taken as true”).
We reject the Frazers’ contentions concerning allegedly inadequate
2 12-35502
discovery, alleged due process violations, and claims arising from the pooling and
servicing agreement to which they were not parties.
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).
The Frazers’ motion to strike Deutsche Bank National Trust Company’s
answering brief, set forth in the Frazers’ reply brief, is denied.
The Frazers’ motion to remove or disqualify Deutsche Bank National Trust
Company’s counsel, Lane Powell, PC, and Mr. Spellman, on the basis of
Spellman’s previous representation, set forth in the Frazers’ reply brief, is denied.
See Wash. R. Prof’l Conduct 1.9(a) (no violation of an attorney’s duty to a former
client where current representation is not “substantially related” to previous
representation).
AFFIRMED.
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