FILED
NOT FOR PUBLICATION
MAY 04 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: BENJAMIN MENJIVAR, No. 14-60012
Debtor, BAP No. 12-1608
BENJAMIN MENJIVAR; et al., MEMORANDUM*
Appellants,
v.
WELLS FARGO BANK, N.A., Successor
and/or Assignee of World Savings Bank,
FSB, its Sucessors and or Assignees,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Kurtz, and Ballinger, Jr., Bankruptcy Judges, Presiding
Argued and Submitted February 2, 2016
Pasadena, California
Before: D.W. NELSON, CALLAHAN, and N.R. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Benjamin and Sara Menjivar appeal from the Bankruptcy Appellate Panel’s
(“BAP”) affirmance of the bankruptcy court’s dismissal of their First Amended
Complaint (“FAC”) for failure to state a claim in an adversary bankruptcy
proceeding. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de
novo the BAP’s decision, Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d
1088, 1090 (9th Cir. 2009), and we AFFIRM.
The BAP did not err in applying California’s three-year limitations period
for fraud claims, Cal. C. Civ. Proc. § 338(d), to affirm the dismissal with prejudice
of the Menjivars’ claims seeking to invalidate the note and trust deed against their
residence on a theory of fraudulent inducement. Cf. Vess v. Ciba-Geigy Corp.
USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003) (explaining that, where a plaintiff
“allege[s] a unified course of fraudulent conduct and rel[ies] entirely on that course
of conduct as the basis of a claim,” the claim “is said to be ‘grounded in fraud’ or
to ‘sound in fraud’” (citations omitted)).
The Menjivars assert for the first time on appeal that California’s limitations
period for rescission or unfair business practices claims should be applied to their
state law claims. Because these issues are raised for the first time on appeal, and
because the Menjivars have not identified any “exceptional circumstances” that
would warrant a favorable exercise of our discretion to consider them, we decline
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to do so. Mano–Y & M, Ltd. v. Field (In re Mortgage Store, Inc.), 773 F.3d 990,
998 (9th Cir. 2014). The Menjivars have not pled, and have not indicated a
willingness or ability to plead, facts sufficient to articulate a cognizable claim for
rescission or unfair business practices under California law. As counsel conceded
at oral argument, the FAC does not contain the words “rescission” or “rescind,”
and it nowhere references California Code of Civil Procedure § 337(3) or
California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et
seq. Additionally, the Menjivars never argued before the bankruptcy court or the
BAP that their FAC stated rescission or UCL claims.
Because we affirm the dismissal of the Menjivars’ claims on other grounds,
we do not reach the issue, also raised by the Menjivars for the first time on appeal,
of Wells Fargo’s ability to assert preemption under the Home Owners’ Loan Act,
12 U.S.C. § 1461 et seq.
AFFIRMED.
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