FILED
JUN 05 2018
1 NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
2 OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
4
5 In re: ) BAP No. NC-17-1217-FBTa
)
6 JAMES AMAR SINGH, ) Bk. No. 4:15-bk-40917
)
7 Debtor. ) Adv. Pro. 4:16-ap-04026
_____________________________ )
8 )
JAMES AMAR SINGH, )
9 )
Appellant, )
10 )
v. ) MEMORANDUM*
11 )
WELLS FARGO BANK, N.A., )
12 )
Appellee. )
13 ______________________________)
14 Argued and Submitted on May 25, 2018
at San Francisco, California
15
Filed – June 5, 2018
16
Appeal from the United States Bankruptcy Court
17 for the Northern District of California
18 Honorable William J. Lafferty, Bankruptcy Judge, Presiding
19
Appearances: Appellant James Amar Singh, pro se, on the brief;
20 James Z. Margolis argued on behalf of appellant;
Robert Collings Little of Anglin Flewelling
21 Rasmussen Campbell & Trytten LLP argued for
appellee Wells Fargo Bank, N.A.
22
23 Before: FARIS, BRAND, and TAYLOR, Bankruptcy Judges.
24
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have, see Fed. R. App. P. 32.1, it has no precedential value, see
28 9th Cir. BAP Rule 8024-1.
1 INTRODUCTION
2 Appellant James Amar Singh’s nine-year quest to stave off
3 foreclosure of his home has engendered at least ten bankruptcy
4 cases and four lawsuits. In this latest iteration, Mr. Singh
5 sought chapter 131 bankruptcy protection and filed an adversary
6 proceeding against appellee Wells Fargo Bank, N.A. (“Wells
7 Fargo”), seeking a declaration that Wells Fargo lacked any rights
8 in his real property due to an earlier foreclosure that a state
9 court jury found to be improper. In a thoroughly reasoned
10 decision, the bankruptcy court granted Wells Fargo’s motion to
11 dismiss the adversary proceeding with prejudice.
12 On appeal, Mr. Singh largely ignores the bankruptcy court’s
13 analysis and continues to insist, incorrectly, that the jury
14 verdict in his favor permanently bars Wells Fargo’s interest in
15 his property. We AFFIRM.
16 FACTUAL BACKGROUND
17 A. Prelitigation events
18 In January 2006, Mr. Singh obtained a $500,000 loan from
19 Wells Fargo’s predecessor, which was secured by a deed of trust
20 encumbering his residential real property located in Oakland,
21 California (the “Property”). (We will refer to Wells Fargo and
22 its predecessors collectively as “Wells Fargo.”) Mr. Singh
23 defaulted on the loan in December 2009, and Wells Fargo recorded
24 a notice of default. The foreclosure sale of the Property was
25
1
26 Unless specified otherwise, all chapter and section
references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all
27 “Rule” references are to the Federal Rules of Bankruptcy
Procedure, and all “Civil Rule” references are to the Federal
28 Rules of Civil Procedure.
2
1 scheduled for August 8, 2010.
2 B. State and federal litigation
3 In the span of five years, Mr. Singh initiated ten
4 bankruptcy cases, most of which were quickly dismissed for
5 failure to file documents. He filed his first petition on
6 August 5, 2010, which stayed the pending foreclosure sale and
7 allowed him to begin prosecuting his string of civil cases.
8 1. The first lawsuit
9 In October 2011, Mr. Singh filed suit (the “First Lawsuit”)
10 in state court against Wells Fargo to challenge the foreclosure.
11 He asserted six causes of action: (1) elder financial abuse,
12 (2) wrongful foreclosure, (3) breach of contract, (4) intentional
13 infliction of emotional distress, (5) violation of business and
14 professions code, and (6) quiet title. Wells Fargo removed the
15 First Lawsuit to federal district court. After the district
16 court denied Mr. Singh’s motion for an injunction barring Wells
17 Fargo from conducting a foreclosure sale, Mr. Singh voluntarily
18 dismissed the First Lawsuit pursuant to Civil Rule 41(a).
19 In July 2012, Wells Fargo purchased the Property at a
20 foreclosure sale and recorded a trustee’s deed upon sale
21 (“Trustee’s Deed”). Mr. Singh contends that the foreclosure sale
22 was invalid. He claims that the sale was cancelled when the
23 auctioneer received copies of Mr. Singh’s eighth bankruptcy
24 petition that was filed earlier that day. (Mr. Singh had filed
25 four bankruptcy petitions in the year preceding the foreclosure
26 sale.) Mr. Singh claims that, nevertheless, Wells Fargo
27 “illegally” purchased the Property after all other bidders had
28 left.
3
1 2. The second lawsuit
2 In December 2012, Mr. Singh filed another lawsuit (the
3 “Second Lawsuit”) against Wells Fargo in state court. He alleged
4 seven causes of action: (1) quiet title, (2) declaratory relief,
5 (3) preliminary and permanent injunction, (4) cancellation of
6 instruments, (5) wrongful foreclosure, (6) unjust enrichment, and
7 (7) fraud.
8 Wells Fargo again removed the case to the federal district
9 court. The district court dismissed Mr. Singh’s complaint
10 without leave to amend for failure to state a claim upon which
11 relief could be granted. Mr. Singh appealed the decision to the
12 Ninth Circuit Court of Appeals, which affirmed the dismissal in
13 December 2016.
14 3. The unlawful detainer action
15 Following the foreclosure sale, Wells Fargo filed an
16 unlawful detainer action (the “Unlawful Detainer Action”) in
17 state court. Mr. Singh apparently challenged the propriety of
18 the sale on grounds that the record does not disclose. A jury
19 determined that Wells Fargo did not purchase the Property “at a
20 properly conducted trustee sale” and that Wells Fargo “shall take
21 nothing by [its] Complaint” (the “Unlawful Detainer Judgment”).
22 Wells Fargo then recorded a notice of rescission of the
23 Trustee’s Deed (“Notice of Rescission”) as a first step toward a
24 second foreclosure sale.
25 4. The third lawsuit
26 In March 2015, Mr. Singh filed yet another lawsuit (the
27 “Third Lawsuit”) in state court, alleging that Wells Fargo had no
28 right to resume the foreclosure process because the Unlawful
4
1 Detainer Judgment had claim preclusive effect. He asserted
2 claims for: (1) conversion, (2) slander of title, (3) fraud,
3 (4) infliction of emotional distress, (5) elder abuse,
4 (6) declaratory relief, and (7) preliminary and permanent
5 injunction. He alleged that he owned the Property free and clear
6 of Wells Fargo’s encumbrances. After Wells Fargo removed the
7 Third Lawsuit to federal district court, Mr. Singh voluntarily
8 dismissed it.
9 C. The chapter 13 bankruptcy case and adversary proceeding
10 Also in March 2015, Mr. Singh filed the underlying
11 chapter 13 bankruptcy case. This was his tenth bankruptcy
12 filing.
13 Mr. Singh initiated an adversary proceeding against Wells
14 Fargo, alleging that the Unlawful Detainer Judgment conclusively
15 established that Wells Fargo had no right to record the Trustee’s
16 Deed following the July 2012 foreclosure sale and, therefore, had
17 no right to pursue further foreclosure actions. He also alleged
18 that Wells Fargo did not properly rescind the Trustee’s Deed.
19 The amended adversary complaint asserted nine causes of action:
20 (1) injunctive relief, (2) declaratory relief, (3) turnover of
21 unlawfully conveyed real property, (4) slander of title,
22 (5) financial elder abuse fraud, (6) quiet title, (7) fraud,
23 malice, and oppression, (8) violation of business and professions
24 code section 17200, and (9) accounting.
25 D. The motion to dismiss
26 Wells Fargo moved to dismiss the adversary proceeding under
27 Civil Rule 12(b)(6), made applicable to bankruptcy by Rule
28
5
1 7012(b) (“Motion to Dismiss”).2 It argued that the complaint
2 failed to state a claim upon which relief could be granted
3 because, among other things, Mr. Singh voluntarily dismissed
4 similar claims twice before in the First and Third Lawsuits,
5 which barred further adjudication under Civil Rule 41(a)(1)(B),
6 made applicable in bankruptcy by Rule 7041; he failed to make a
7 valid tender of the outstanding debt, thereby precluding
8 equitable relief; the Unlawful Detainer Judgment did not preclude
9 Wells Fargo from continuing its foreclosure efforts; and the
10 Notice of Rescission was proper.
11 In response, Mr. Singh argued that Wells Fargo “stole [his]
12 Property through a fraudulent sale” and filed “a Bogus Notice of
13 Rescission of Trustee’s Deed Upon Sale[.]” He argued that claim
14 preclusion did not apply to the slander of title claim, which he
15 alleged for the first time in the adversary complaint. In the
16 alternative, he asked that the bankruptcy court allow him leave
17 to amend the complaint.
18 At the hearing on the Motion to Dismiss, counsel for Wells
19 Fargo reminded the court that, in the time that the Motion to
20 Dismiss was pending, the Ninth Circuit affirmed the district
21 court’s dismissal of the Second Lawsuit; as a result, claim
22 preclusion barred relitigation of the claims raised in the Second
23 Lawsuit. In response, Mr. Singh’s counsel argued briefly that
24 claim preclusion was inapplicable because “the matters that we’re
25
26 2
The bankruptcy court dismissed the underlying bankruptcy
27 case in May 2016 but retained jurisdiction over the adversary
proceeding. Mr. Singh later filed his eleventh bankruptcy
28 petition in April 2018.
6
1 raising in this case are matters that came about after [the
2 Unlawful Detainer Judgment].”
3 Following the hearing, the bankruptcy court issued its Order
4 Granting Motion to Dismiss First Amended Complaint (“Dismissal
5 Order”).
6 First, the bankruptcy court held that claim preclusion
7 applied to all of the causes of action except the quiet title
8 claim, “because the Second Lawsuit was fully adjudicated
9 adversely to the Plaintiff by both the District Court and the
10 United States Court of Appeals for the Ninth Circuit . . . and
11 contained claims based on the same underlying facts as alleged in
12 the [adversary complaint].”
13 Second, the bankruptcy court held that the “Two Dismissal
14 Rule” of Civil Rule 41(a)(1)(B) barred relitigation of the claims
15 previously asserted (and dismissed) in the First and Third
16 Lawsuits.
17 Third, the bankruptcy court held that Mr. Singh’s failure to
18 tender payment of the debt mandated dismissal of the equitable
19 claims - injunctive relief, declaratory relief, quiet title,
20 unfair competition, and accounting.
21 Finally, the bankruptcy court considered the merits of the
22 individual claims and determined that none stated a claim upon
23 which relief could be granted. The bankruptcy court therefore
24 dismissed the adversary complaint with prejudice.
25 Mr. Singh timely appealed.
26 JURISDICTION
27 The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
28 §§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C.
7
1 § 158.
2 ISSUE
3 Whether the bankruptcy court erred in dismissing the
4 complaint without leave to amend.
5 STANDARDS OF REVIEW
6 We review de novo a bankruptcy court’s decision to grant a
7 motion to dismiss a complaint under Civil Rule 12(b)(6). See
8 Barnes v. Belice (In re Belice), 461 B.R. 564, 572 (9th Cir. BAP
9 2011). De novo review is independent and gives no deference to
10 the trial court’s conclusion. Roth v. Educ. Credit Mgmt. Agency
11 (In re Roth), 490 B.R. 908, 915 (9th Cir. BAP 2013).
12 A decision to dismiss a complaint without leave to amend and
13 with prejudice is reviewed for abuse of discretion. See Tracht
14 Gut, LLC v. L.A. Cty. Treasurer & Tax Collector (In re Tracht
15 Gut, LLC), 836 F.3d 1146, 1150 (9th Cir. 2016). To determine
16 whether the bankruptcy court has abused its discretion, we
17 conduct a two-step inquiry: (1) we review de novo whether the
18 bankruptcy court “identified the correct legal rule to apply to
19 the relief requested” and (2) if it did, whether the bankruptcy
20 court’s application of the legal standard was illogical,
21 implausible, or without support in inferences that may be drawn
22 from the facts in the record. United States v. Hinkson, 585 F.3d
23 1247, 1262–63 & n.21 (9th Cir. 2009) (en banc).
24 DISCUSSION
25 A. Civil Rule 12(b)(6) requires Mr. Singh to state a claim upon
which relief can be granted.
26
27 Under Civil Rule 12(b)(6), a court must dismiss a complaint
28 if it fails to state a claim upon which relief can be granted.
8
1 To survive a motion to dismiss, the plaintiff must allege “enough
2 facts to state a claim to relief that is plausible on its face.”
3 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
4 facially plausible when the plaintiff pleads facts that “allow[ ]
5 the court to draw the reasonable inference that the defendant is
6 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
7 662, 678 (2009) (citation omitted). While courts do not require
8 “heightened fact pleading of specifics,” a plaintiff must allege
9 facts sufficient to “raise a right to relief above the
10 speculative level.” Twombly, 550 U.S. at 555, 570.
11 In deciding whether the complaint states a claim upon which
12 relief can be granted, the court accepts the allegations as true
13 and draws all reasonable inferences in favor of the plaintiff.
14 See Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987).
15 But the court is not required to accept as true “allegations that
16 are merely conclusory, unwarranted deductions of fact, or
17 unreasonable inferences.” In re Gilead Scis. Sec. Litig.,
18 536 F.3d 1049, 1055 (9th Cir. 2008).
19 B. Mr. Singh’s basic argument – that the Unlawful Detainer
Judgment destroyed Wells Fargo’s deed of trust – is wrong.
20
21 The crux of Mr. Singh’s arguments on appeal is that the
22 Unlawful Detainer Judgment stripped Wells Fargo of its rights in
23 the Property and precludes it from taking any further action to
24 foreclose on the Property. He is mistaken.
25 Mr. Singh argues that Wells Fargo lacks the authority to
26 foreclose on the Property “because Wells Fargo lost the unlawful
27 detainer action[.]” He also contends that the claims that rely
28 on the wrongful foreclosure claims (such as the elder abuse
9
1 claim, quiet title claim, and slander of title claim) should have
2 survived the Motion to Dismiss for the same reason.
3 But Mr. Singh’s position rests on a false premise: that the
4 Unlawful Detainer Judgment extinguished Wells Fargo’s rights in
5 the Property. The jury’s finding that a procedural deficiency
6 voided the July 2012 foreclosure sale does not mean that Wells
7 Fargo is forever barred from conducting a proper foreclosure.
8 Therefore, all of the claims that rely on his wrongful
9 foreclosure argument necessarily fail.3
10 Similarly, Mr. Singh contends that the bankruptcy court
11 erred because the Unlawful Detainer Judgment should have been
12 given claim preclusive effect in his favor. But the jury only
13 found that the July 2012 foreclosure sale was defective. The
14 Unlawful Detainer Judgment does not provide, for example, that
15 Mr. Singh is entitled to a judgment quieting title in him free of
16 the deed of trust. It has a more narrow effect than Mr. Singh
17 believes and does not support his claims in the adversary
18 proceeding.4 The Ninth Circuit was similarly unswayed by this
19 argument in deciding the appeal of the judgment in the Second
20
21 3
Perhaps relatedly, Mr. Singh argues that Wells Fargo could
22 not foreclose because it violated the conditions precedent to a
foreclosure under the deed of trust. It is not clear that he
23 made this argument in the bankruptcy court; if he did not, the
argument is waived. But even if he did, he does not explain this
24 argument. He cites a lengthy paragraph purportedly from the deed
of trust but does not state how Wells Fargo allegedly violated
25 it. We can discern no error based on this argument.
26 4
In his reply brief, Mr. Singh complains that Wells Fargo
27 refused to agree to a loan modification. He offers no authority
for the proposition that Wells Fargo had any legal obligation to
28 modify the terms of the loan.
10
1 Lawsuit, stating that it “reject[s] without merit . . . Singh’s
2 contentions regarding . . . the preclusive effect of the parties’
3 state unlawful detainer action.” We are bound by the Ninth
4 Circuit’s rejection of Mr. Singh’s preclusion arguments.
5 In short, Wells Fargo’s errors in its first attempt to
6 foreclose do not entitle Mr. Singh to a free house.
7 C. Mr. Singh fails to address the majority of the bankruptcy
court’s Dismissal Order.
8
9 Mr. Singh utterly fails to address the bankruptcy court’s
10 major reasons for dismissing his complaint. As such, those
11 arguments are waived. See Padgett v. Wright, 587 F.3d 983, 986
12 n.2 (9th Cir. 2009) (per curiam) (an appellate court “will not
13 ordinarily consider matters on appeal that are not specifically
14 and distinctly raised and argued in appellant’s opening brief”);
15 Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n
16 appeal, arguments not raised by a party in its opening brief are
17 deemed waived.”); Greenwood v. Fed. Aviation Admin., 28 F.3d 971,
18 977 (9th Cir. 1994) (“We will not manufacture arguments for an
19 appellant, and a bare assertion does not preserve a claim
20 . . . .”). While we liberally construe a pro se debtor’s
21 appellate brief, see Nordeen v. Bank of Am., N.A. (In re
22 Nordeen), 495 B.R. 468, 483 (9th Cir. BAP 2013), we will not
23 question the parts of the bankruptcy court’s decision that
24 Mr. Singh does not even discuss.
25 1. Mr. Singh does not challenge the court’s ruling that
claim preclusion barred relitigation of all claims
26 except for the quiet title claim.
27 Mr. Singh ignores the bankruptcy court’s first reason for
28
11
1 dismissal: that claim preclusion5 barred relitigation of the
2 claims raised in the Second Lawsuit (other than the quiet title
3 claim).
4 Under California law, claim preclusion “prevents
5 relitigation of the same cause of action in a second suit between
6 the same parties or parties in privity with them.” Mycogen Corp.
7 v. Monsanto Co., 28 Cal. 4th 888, 896 (2002). Claim preclusion
8 requires that: (1) the second lawsuit must involve the same
9 “cause of action” as the first lawsuit; (2) the first lawsuit
10 must have resulted in a final judgment on the merits; and (3) the
11 party to be precluded must have been a party, or in privity with
12 a party, to the first lawsuit. See San Diego Police Officers’
13 Ass’n v. San Diego City Emps.’ Ret. Sys., 568 F.3d 725, 734 (9th
14 Cir. 2008). Courts may inquire into fairness and public policy
15 before applying the doctrine of claim preclusion, but that
16 inquiry is not mandatory. See Roberts v. Andrews Family
17 Revocable Tr. (In re Andrews), BAP No. EC-13-1385-JuTaKu, 2014 WL
18 2547808, at *8 (9th Cir. BAP June 5, 2014), aff’d, 668 F. App’x
19 757 (9th Cir. 2016) (citing Kopp v. Fair Political Practices
20 Comm’n, 11 Cal. 4th 607, 620–22 (1995)).
21 First, Wells Fargo established an identity of claims between
22 the adversary proceeding and the Second Lawsuit. California
23 courts employ the “primary rights theory” to determine if two
24
25 5
Although the parties use the term “res judicata,” we
26 employ the term “claim preclusion,” which has “supplanted the
term ‘res judicata’ that was traditionally used in a
27 now-obsolete, non-generic sense . . . .” The Alary Corp. v. Sims
(In re Associated Vintage Grp., Inc.), 283 B.R. 549, 555 (9th
28 Cir. BAP 2002).
12
1 actions constitute a single cause of action. “[A] ‘cause of
2 action’ under the primary rights theory considers the broader
3 question of the injury or harm suffered. ‘The most salient
4 characteristic of a primary right is that it is indivisible: the
5 violation of a single primary right gives rise to but a single
6 cause of action.’” Id. at *9 (quoting Mycogen Corp., 28 Cal. 4th
7 at 904). Therefore, “[i]f an action involves the same injury to
8 the plaintiff and the same wrong by the defendant then the same
9 primary right is at stake even if in the second suit, the
10 plaintiff pleads different theories of recovery, seeks different
11 forms of relief and/or adds new facts supporting recovery.” Id.
12 (quoting Eichman v. Fotomat Corp., 147 Cal. App. 3d 1170, 1174
13 (1983)); see Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d
14 708, 714 (9th Cir. 2001) (“The central criterion in determining
15 whether there is an identity of claims between the first and
16 second adjudications is ‘whether the two suits arise out of the
17 same transactional nucleus of facts.’” (citations omitted)).
18 The bankruptcy court examined the claims adjudicated in the
19 Second Lawsuit and determined that they were identical to the
20 claims raised in the adversary proceeding, except for the quiet
21 title claim. The only change between the Second Lawsuit and the
22 adversary complaint was the Unlawful Detainer Judgment;
23 therefore, “any cause of action that relies on facts surrounding
24 the UD Lawsuit and Judgment[] would not be barred by the doctrine
25 of claim preclusion because it does not rely on the same
26 operative nucleus of facts.” We discern no error in the
27 bankruptcy court’s careful comparison of the various claims.
28 Second, there is no dispute that the Second Lawsuit resulted
13
1 in a final judgment on the merits.
2 Third, Mr. Singh was the prosecuting party in both the
3 Second Lawsuit and the adversary proceeding.
4 Accordingly, the bankruptcy court correctly decided that all
5 of the claims raised in the adversary proceeding (except for the
6 quiet title claim) are barred by claim preclusion.
7 2. Mr. Singh does not challenge dismissal based on the
two-dismissal rule.
8
9 Similarly, the bankruptcy court correctly dismissed the
10 slander of title claim, injunctive relief claim, fraud claim, and
11 elder abuse claim because Mr. Singh had voluntarily dismissed
12 those claims twice before.
13 Under Civil Rule 41(a)(1)(B), “if the plaintiff previously
14 dismissed any federal- or state-court action based on or
15 including the same claim, a notice of dismissal operates as an
16 adjudication on the merits.” This “two-dismissal rule” provides
17 that “a voluntary dismissal of a second action operates as a
18 dismissal on the merits if the plaintiff has previously dismissed
19 an action involving the same claims.” Commercial Space Mgmt. Co.
20 v. Boeing Co., 193 F.3d 1074, 1076 (9th Cir. 1999).
21 The bankruptcy court correctly held that the two-dismissal
22 rule barred those claims that Mr. Singh voluntarily dismissed in
23 the First and Third Lawsuits.6 Mr. Singh does not address this
24
25 6
Although Mr. Singh gave different titles to the causes of
26 action in the First and Third Lawsuits, the bankruptcy court
properly determined that the claims arose out of the “same
27 transactional nucleus of facts.” For example, Mr. Singh asserted
claims in the Third Lawsuit for slander of title and fraud, which
28 (continued...)
14
1 reason for dismissal on appeal or discuss how the bankruptcy
2 court erred.
3 3. Mr. Singh fails to address many of the discrete reasons
for dismissal.
4
5 Mr. Singh largely fails to argue that the bankruptcy court
6 erred in analyzing the individual causes of action. He
7 completely ignores the court’s reasons for dismissing: (1) First
8 Cause of Action: Injunctive Relief; (2) Second Cause of Action:
9 Declaratory Relief; (3) Third Cause of Action: Turnover of
10 Property; (4) Seventh Cause of Action: Fraud; (5) Eighth Cause of
11 Action: Violation of Business and Professions Code 17200; and
12 (6) Ninth Cause of Action: Accounting. Accordingly, he has
13 waived these issues on appeal.
14 4. Mr. Singh did not explain how the bankruptcy court
erred by denying leave to amend.
15
16 Mr. Singh also fails to discuss the bankruptcy court’s
17 decision to dismiss his complaint without leave to amend.
18 The Ninth Circuit instructs that we must “consider five
19 factors in assessing whether a district court abuses its
20 discretion in dismissing a complaint without leave to amend: ‘bad
21 faith, undue delay, prejudice to the opposing party, futility of
22 amendment, and whether the plaintiff has previously amended the
23 complaint.’” Ecological Rights Found. v. Pac. Gas & Elec. Co.,
24 713 F.3d 502, 520 (9th Cir. 2013) (quoting United States v.
25
6
26 (...continued)
were not explicitly asserted in the First Lawsuit. Nevertheless,
27 the bankruptcy court found that “the causes of action which rely
on the facts surrounding the wrongful foreclosure . . . can be
28 dismissed pursuant to the Two Dismissal Rule.”
15
1 Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011)). “Although
2 leave to amend should be given freely, a district court may
3 dismiss without leave where a plaintiff’s proposed amendments
4 would fail to cure the pleading deficiencies and amendment would
5 be futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d
6 1034, 1041 (9th Cir. 2011); see Civil Rule 15(a) (“The court
7 should freely give leave when justice so requires.”).
8 The bankruptcy court determined that leave to amend would be
9 futile because Mr. Singh could not plead any viable claim. We
10 agree. As the bankruptcy court comprehensively explained, each
11 of Mr. Singh’s claims failed as a matter of law for multiple
12 reasons, and Mr. Singh did not propose any way in which he could
13 amend his complaint to avoid the many hurdles.
14 In his briefs, Mr. Singh only states that “[t]he trial court
15 erred in in [sic] dismissing the Adversary complaint without
16 leave to amend.” He also baldly states that the complaint “can
17 reasonably be amended to allege standing and to plead with
18 sufficient particularity on each of SINGH’s claims[,]” but he
19 does not explain how he would amend the complaint to cure the
20 defects.
21 We do not consider arguments that are not specifically and
22 distinctly argued in the appellant’s opening brief. See Padgett,
23 587 F.3d at 986 n.2; Bolt v. Crake (In re Riverside-Linden Inv.
24 Co.), 945 F.2d 320, 325 (9th Cir. 1991) (holding that a passing,
25 conclusory statement “did not permit the issue to be ‘fully
26 explored,’ . . . and we consider the issue waived”). Mr. Singh
27 provides no analysis, legal authority, or facts supporting his
28 assertion that he should be entitled to amend his complaint.
16
1 At oral argument, counsel for Mr. Singh argued that the
2 bankruptcy court should have allowed Mr. Singh to amend his
3 complaint to allege that Wells Fargo had to start the foreclosure
4 process anew, presumably because the Unlawful Detainer Judgment
5 voided all earlier actions to foreclose on the Property. But
6 Mr. Singh did not articulate this theory to the bankruptcy court
7 or in his briefs, so we will not consider it. See Ezra v. Seror
8 (In re Ezra), 537 B.R. 924, 932 (9th Cir. BAP 2015).7
9 Accordingly, the bankruptcy court did not abuse its
10 discretion in granting the Motion to Dismiss with prejudice.
11
7
12 Further, there is no reason to allow Mr. Singh to file an
amended complaint based on his fear that Wells Fargo might err
13 again. As far as we can tell from the record, Mr. Singh’s serial
bankruptcy filings have so far prevented Wells Fargo from
14 foreclosing again. If Wells Fargo manages to get a new
15 foreclosure off the ground, Mr. Singh could assert any proper
challenges to that foreclosure at an appropriate time and in an
16 appropriate forum. Any wrongs committed in that new foreclosure
would not have any bearing on the bankruptcy case in which this
17 adversary proceeding was brought (Mr. Singh’s tenth bankruptcy
case) because that bankruptcy case has been dismissed. Any
18 claims arising out of the new foreclosure would be based on
19 conduct occurring after that bankruptcy case was dismissed, and
those claims would not be property of the estate in the dismissed
20 bankruptcy case. Because the claims arising out of the new
foreclosure would not affect the outcome of Mr. Singh’s tenth
21 bankruptcy case or the administration of his estate, the
bankruptcy court likely would not have “related to” subject
22
matter jurisdiction. Cf. Montana v. Goldin (In re Pegasus Gold
23 Corp.), 394 F.3d 1189, 1193 (9th Cir. 2005) (stating that the
“related to” test examines whether “the outcome of the proceeding
24 could conceivably have any effect on the estate being
administered in bankruptcy”); Linkway Inv. Co. v. Olsen (In re
25 Casamont Inv’rs, Ltd.), 196 B.R. 517, 521 (9th Cir. BAP 1996)
26 (“An action is ‘related to’ a bankruptcy case if the outcome of
the proceeding could conceivably alter the debtor’s rights,
27 liabilities, options or freedom of action (either positively or
negatively) in such a way as to impact on the administration of
28 the bankruptcy estate.”).
17
1 D. Mr. Singh fails to allege any actual injury.
2 The bankruptcy court held that Mr. Singh did not properly
3 allege any injury, which is fatal to many of his claims.
4 Mr. Singh argues on appeal that he was damaged in an unspecified
5 amount to be determined at trial. The court did not err.
6 As a general rule, a plaintiff must allege damages suffered
7 due to the allegedly improper foreclosure. See generally
8 Cervantes, 656 F.3d at 1044 (holding that plaintiffs failed to
9 state a claim where they “have not identified damages”); Simmons
10 v. Aurora Bank FSB, No. 13-cv-00482-HRL, 2016 WL 192571, at *7
11 (N.D. Cal. Jan. 15, 2016) (stating that, to state a claim for
12 wrongful foreclosure, a plaintiff must allege that “she was
13 prejudiced or harmed”). In this case, Mr. Singh alleges that he
14 suffered prejudice because “he lost his home at a foreclosure
15 sale,” which “shows prejudice” in and of itself and would
16 naturally cause anyone “emotional suffering.” But aside from
17 these vague statements, he still fails to allege how and to what
18 extent he has been actually harmed. He also argued to the
19 bankruptcy court that the property taxes on the Property had
20 increased; but it is undisputed that he has not paid taxes since
21 he defaulted on the mortgage loan.
22 Mr. Singh fails to articulate any actual injury or explain
23 how he would cure this defect if he were allowed to amend his
24 complaint. The bankruptcy court did not err in determining that
25 he did not allege actual injury.
26 E. We will not consider new arguments raised for the first time
on appeal.
27
28 Mr. Singh raises a number of new arguments on appeal that he
18
1 did not present to the bankruptcy court. For example, he makes
2 references to Wells Fargo’s alleged violations of the Equal
3 Credit Opportunity Act and the California Homeowners’ Bill of
4 Rights. He also raises new factual arguments, detailing Wells
5 Fargo’s alleged misapplication or miscalculation of his mortgage
6 payments, the “contrived” default, invalid assignment, and
7 improper securitization.
8 We will not consider these new arguments in the first
9 instance. We have stated that, “[o]rdinarily, federal appellate
10 courts will not consider issues not properly raised in the trial
11 courts. . . . An issue only is ‘properly raised’ if it is raised
12 sufficiently to permit the trial court to rule upon it.” In re
13 Ezra, 537 B.R. at 932 (citations omitted); see Moldo v. Matsco,
14 Inc. (In re Cybernetic Servs., Inc.), 252 F.3d 1039, 1045 n.3
15 (9th Cir. 2001) (stating that the appellate court would not
16 explore ramifications of argument because it was not raised in
17 the bankruptcy court); Levesque v. Shapiro (In re Levesque),
18 473 B.R. 331, 335 (9th Cir. BAP 2012) (“Ordinarily, if an issue
19 is not raised before the trial court, it will not be considered
20 on appeal and will be deemed waived.”).
21 Accordingly, Mr. Singh has waived these arguments.8
22
8
23 We have discretion to “consider an issue raised for the
first time on appeal if (1) there are exceptional circumstances
24 why the issue was not raised in the trial court, (2) the new
issue arises while the appeal is pending because of a change in
25 the law, or (3) the issue presented is purely one of law and the
26 opposing party will suffer no prejudice as a result of the
failure to raise the issue in the trial court.” In re Ezra,
27 537 B.R. at 932-33 (quoting Franchise Tax Bd. v. Roberts (In re
Roberts), 175 B.R. 339, 345 (9th Cir. BAP 1994)). Mr. Singh has
28 (continued...)
19
1 CONCLUSION
2 The bankruptcy court did not err when it dismissed
3 Mr. Singh’s adversary complaint with prejudice. We AFFIRM.9
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22 8
(...continued)
23 not identified any exceptional circumstances excusing his failure
to raise any of these issues below. He also does not identify
24 any change in law, assert that the issue is purely one of law, or
discuss prejudice Wells Fargo may face.
25
9
26 As an additional justification for the dismissal of
Mr. Singh’s claims for equitable relief, the bankruptcy court
27 held that he failed to tender payment of the debt. We do not
reach this issue because we are affirming the decision on several
28 other, independently sufficient grounds.
20