FILED
NOT FOR PUBLICATION NOV 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ANDREW RALPH BELLO, Sr., No. 13-60087
Debtor, BAP No. 11-1541
ANDREW RALPH BELLO, Sr., MEMORANDUM*
Appellant,
v.
CHASE HOME FINANCE, LLC,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Jury, and Bason, Bankruptcy Judges, Presiding
Submitted November 5, 2015**
Pasadena, California
*
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).
Before: FARRIS and BYBEE, Circuit Judges and TIGAR,*** District Judge.
The facts and procedural posture of this case are known to the parties, and
we do not repeat them here.1 Appellant Ralph Bello, Sr. seeks reversal of the
Bankruptcy Appellate Panel’s decision affirming the bankruptcy court’s order,
which dismissed Bello’s second amended complaint with prejudice. We review a
motion to dismiss de novo, Narayanan v. British Airways, 747 F.3d 1125, 1127
(9th Cir. 2014), and the decision to deny leave to amend for abuse of discretion, In
re Western States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 736 (9th
Cir. 2013). We affirm.
First, although the BAP did not reach these grounds, the bankruptcy court
dismissed three of Bello’s claims—failure to perfect the trust deed, violation of the
California Consumer Legal Remedies Act, and violation of the automatic
stay—because Bello neither sought for nor was granted leave to add those claims
under Fed. R. Civ. P. 15. Bello cannot dismiss his failure to even ask for leave to
add new claims as a “mishap” or “technicality” where the court had already
dismissed his complaint twice and granted leave only to fix deficiencies in the
***
The Honorable Jon S. Tigar, District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
1
Appellee’s motion to take judicial notice of various public record
documents is hereby granted.
2
existing complaint. Thus we affirm the BAP on this alternative ground; the
bankruptcy court did not abuse its discretion. See In re Western States, 715 F.3d at
738; see also Dittman v. California, 191 F.3d 1020, 1927 n.3 (9th Cir. 1999)
(noting our ability to affirm on alternative grounds).
Second, Bello’s claim that problems with the substitution of trustee
invalidated the lien is baseless. Under California law, a substitution of trustee is
effective from the time it is recorded. Cal. Civ. Code § 2934a(a)(1), (4). And
once it is recorded, the new trustee is retroactively authorized “from the date the
substitution [was] executed.” Id. § 2934a(4)(d). Moreover, even where a notice of
default was recorded by someone who was not the trustee at the time, it is only
where the notice of sale is recorded prior to the recording of the substitution that a
sale can be invalidated. See Ferguson v. Avelo Mortg., LLC, 126 Cal. Rptr. 3d
586, 594–95 (Ct. App. 2011).
Third, Bello’s claim for a violation of the California Homeowners Bill of
Rights is raised for the first time on appeal. He never even pleaded this claim. We
will not address it. See Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir.
2011).
Finally, because all of Bello’s claims fail as a matter of law, his request for
declaratory relief also necessarily fails. See 28 U.S.C. § 2201.
3
The BAP’s decision is AFFIRMED.
4