Bernard Przybylski, Jr. v. Federal National Mortgage Asso

FILED
NOT FOR PUBLICATION DEC 04 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BERNARD JOHN PRZYBYLSKI, Jr., No. 13-15462

Plaintiff - Appellant, D.C. No. 3:12-cv-08248-NVW

v.
MEMORANDUM*
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,

Defendant - Appellee.

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding

Submitted November 18, 2014**

Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

Bernard John Przybylski, Jr., appeals pro se from the district court’s

judgment in his action arising out of foreclosure proceedings. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P.

*
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).
12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th

Cir. 2011). We affirm.

The district court properly dismissed Przybylski’s action because Przybylski

failed to allege facts sufficient to state a cognizable claim for relief. See Hogan v.

Wash. Mut. Bank, N.A., 277 P.3d 781, 782 (Ariz. 2012) (en banc) (“Arizona’s non-

judicial foreclosure statutes do not require the beneficiary to prove its authority or

‘show the note’ before the trustee may commence a non-judicial foreclosure.”);

Farrell v. West, 114 P.2d 910, 911 (Ariz. 1941) (where “it appears there is an

unsatisfied balance due to a defendant-mortgagee, . . . , the court will not quiet the

title until and unless [the plaintiff] pays off such mortgage lien”); Strawberry

Water Co. v. Paulsen, 207 P.3d 654, 659 (Ariz. Ct. App. 2008) (real property

interests cannot be converted).

Contrary to Przybylski’s contentions, the district court properly concluded

that abstention was not warranted. See Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d

1163, 1167 (9th Cir. 2013) (setting forth elements of Younger abstention doctrine

and concluding that it did not apply to state unlawful detainer actions); Sexton v.

NDEX W., LLC, 713 F.3d 533, 536-38 (9th Cir. 2013) (discussing elements of prior

exclusive jurisdiction doctrine and Colorado River abstention doctrine and

concluding that neither doctrine applied in the absence of pending state court

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proceedings involving the same property); Poulos v. Caesars World, Inc., 379 F.3d

654, 671 (9th Cir. 2004) (explaining that Burford abstention “is concerned with

protecting complex state administrative processes from undue federal interference”

and identifying three factors that must be met before it is applied (citation and

internal quotation marks omitted)). Moreover, we reject as without merit

Przybylski’s contention that the district court should have remanded his action on

the basis of abstention.

We do not consider Przybylski’s request for leave to amend because it was

raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2

(9th Cir. 2009) (per curiam); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d

741, 749 (9th Cir. 2006) (“[W]e generally will not remand with instructions to

grant leave to amend unless the plaintiff sought leave to amend below.”).

Przybylski’s motion for judicial notice, filed on June 20, 2013, is denied.

Fannie Mae’s motion for judicial notice, filed on July 22, 2013, is granted.

AFFIRMED.

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