NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LARKIN J. SIMMONS; SHEILA A. No. 13-15079
SIMMONS, husband and wife as
community property with the right of DC No. 2:12 cv-1938 FJM
survivorship,
Plaintiffs - Appellants, MEMORANDUM*
v.
CITIBANK, NA, as Trustee for the
Certificate Holders of Bear Stearns Alt-A
Trust 2006-4, Mortgage Pass-Through
Certificates, Series 2006-4; BAC HOME
LOANS SERVICING, LP; BANK OF
AMERICA, NA, a National Banking
Association; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., a Delaware corporation;
RECON TRUST COMPANY, N.A., a
National Association,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, Senior District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted February 10, 2015
San Francisco California
Before: THOMAS, Chief Judge, and TASHIMA and McKEOWN, Circuit
Judges.
Plaintiffs Larkin J. and Sheila A. Simmons (together “Simmons”) appeal the
district court’s order granting the motion to dismiss their complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), filed by Defendants Citibank, N.A.,
Mortgage Electronic Registration System, Inc. (“MERS”), ReconTrust Company,
N.A., BAC Home Loans Servicing, L.P., and Bank of America N.A. (collectively,
“Defendants”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Simmons contends that the note and deed of trust securing their home
were never properly assigned to Citibank, and that ReconTrust was not validly
substituted as the trustee. The documents attached to Simmons’ complaint directly
refute this contention. Accordingly, these arguments and the complaint fail to state
a claim for relief. See Zadrozny v. Bank of N.Y. Mellon, 720 F.3d 1163, 1167-68
(9th Cir. 2013) (rejecting a borrower’s assertion that the deed of trust was “never
properly assigned to Bank of New York” in light of the “express provision[] in the
deed of trust for selling the note and for appointing a successor trustee,” which is
virtually identical to the one here).
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2. Next, Simmons contends that neither Citibank nor ReconTrust has the
power to foreclose “unless and until Citibank . . . shows a valid assignment in
writing of both the Note and Deed of Trust by the original lender.” This assertion
is a variant of the argument that a trustee may not “foreclose on a deed of trust
without the beneficiary first having to show ownership of the note that the deed
secures.” Hogan v. Wash. Mut. Bank, N.A., 277 P.3d 781, 782 (Ariz. 2012). The
Arizona Supreme Court, however, has expressly rejected this argument. See id. at
783. Thus, under this argument, the complaint fails to state a claim for relief.
3. Simmons further contends that, under Arizona law, no party has the
power to initiate foreclosure because MERS “was never lawfully appointed as the
‘beneficiary’ under the Simmons’ Deed of Trust.” This argument is foreclosed by
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1044 (9th Cir. 2011).
See also Zadrozny, 720 F.3d at 1169 (noting that, in Cervantes, this Court held that
“under Arizona law, MERS may serve as a beneficiary in non-judicial
foreclosures”). Accordingly, this argument cannot rescue the complaint from
dismissal for failure to state a claim for relief.
4. Finally, Simmons contends that the decision below should be reversed
because the district court impermissibly “jettison[ed]” and “ignore[d] the entire
Arizona version of the Uniform Commercial Code [“UCC”] which sets for[th] the
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only procedure for non-judicially foreclosing a deed of trust securing a promissory
note in the state of Arizona.” Simmons, simply, is wrong. In fact, the Arizona
Supreme Court has expressly held exactly the opposite: that, because “[t]he UCC
does not govern liens on real property,” a trustee need not comply with the UCC
before commencing a non-judicial foreclosure. Hogan, 277 P.3d at 783; see also
Zadrozny, 720 F.3d at 1171 (“The Arizona Supreme Court has definitively rejected
the . . . argument that a trustee must comply with UCC provisions to pursue
foreclosure proceedings.”). This contention is meritless.
5. Simmons has raised other arguments, but these were not asserted in
the district court. Accordingly, these arguments are waived and need not be
addressed. See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 n.1 (9th Cir. 2002) (“In
general, a party who fails to raise an issue in the district court, cannot raise it on
appeal.”).
• • ! • •
The judgment of the district court is AFFIRMED.
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