Bello v. Chase Home Finance, LLC

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NOT FOR PUBLICATION NOV 13 2015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