James Singh v. Wells Fargo Bank, N.A.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAMES SINGH, No. 13-16077

Plaintiff-Appellant, D.C. No. 3:12-cv-06566-SI

v.
MEMORANDUM*
WELLS FARGO BANK, NA, individually;
BANK OF NEW YORK MELLON CORP.,
as Trustee for World Savings Remic 23,
Mortgage Passthrough Certificates, Series
23,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding

Submitted December 14, 2016**

Before: WALLACE, LEAVY, and FISHER, Circuit Judges.

James Singh appeals pro se from the district court’s judgment in this

diversity action alleging state law claims stemming from defendants’ attempted

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
foreclosure on his home. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo the district court’s dismissal for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6). Cervantes v. Countrywide Home Loans,

Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We affirm.

The district court properly dismissed Singh’s claim for relief based on an

alleged violation of Cal. Civ. Code § 2934a(a)(1)(A) because the documents

attached to the complaint and in the public record established a valid substitution

of trustee by the present beneficiary under the Deed of Trust. See Daniels-Hall v.

Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (court not required to accept

as true allegations that contradict exhibits attached to the complaint); see also Cal.

Civ. Code § 2934a(d) (recorded substitution of trustee constitutes conclusive

evidence of the authority of the substituted trustee).

Singh waived any challenge to the district court’s conclusion that his

remaining claims were preempted by the Home Owners’ Loan Act (“HOLA”)

because he failed to make any argument against preemption on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009) (“This court will not

ordinarily consider matters on appeal that are not specifically and distinctly raised

and argued in appellant’s opening brief.” (citation and internal quotation marks

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omitted)). Because we affirm the dismissal of these claims as preempted by

HOLA, we do not address the merits of Singh’s arguments as to the underlying

claims.

The district court properly granted defendants’ motion to expunge the lis

pendens because Singh failed to establish the probable validity of his real property

claim. See Cal. Civ. Code § 405.32 (“[T]he court shall order that the notice be

expunged if the court finds that the claimant has not established by a

preponderance of the evidence the probable validity of the real property claim.”).

We reject as without merit Singh’s contention that the district court should

have remanded the case to state court sua sponte, as well as Singh’s contentions

regarding the parties’ consent to proceed before a magistrate and the preclusive

effect of the parties’ state unlawful detainer action.

Wells Fargo’s opposed motion for judicial notice, filed on November 10,

2015, is granted.

Singh’s motion for judicial notice, filed on November 25, 2015, is denied as

unnecessary.

Singh’s motions for an extension of time to file his opening brief, filed on

October 2, 2013 and October 15, 2013, are denied as moot.

3 13-16077
 Singh’s request for attorney’s fees and costs, set forth in his reply brief, is

denied.

AFFIRMED.

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