FILED JUN 24 2015 1 NOT FOR PUBLICATION 2 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-14-1343-TaKuD ) 6 CRAIG HART, ) Bk. No. 2:13-bk-17412-BR ) 7 Debtor. ) Adv. No. 2:13-ap-01427-BR ______________________________) 8 ) CRAIG HART, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) BANK OF AMERICA HOME LOANS; ) 12 BANK OF AMERICA CORPORATION; ) COUNTRYWIDE FINANCIAL ) 13 CORPORATION; BANK OF NEW YORK ) MELLON; CWALT, INC.; ) 14 RECONTRUST COMPANY; RECONTRUST) N.A.; MORTGAGE ELECTRONIC ) 15 REGISTRATION; LANDSAFE; ) COUNTRYWIDE HOME LOANS, ) 16 ) Appellees.** ) 17 ______________________________) 18 19 20 21 22 * This disposition is not appropriate for publication. 23 Although it may be cited for whatever persuasive value it may 24 have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8024-1(c)(2). 25 ** On December 1, 2014, the BAP Clerk issued a conditional 26 order of waiver advising appellees that they had until December 27 15, 2014 to file a brief. They did not, and they have not otherwise appeared in this appeal. As a result, the appellees 28 waived their right to file a brief or appear at oral argument.
1 Submitted Without Oral Argument*** on June 18, 2015 2 Filed - June 24, 2015 3 Appeal from the United States Bankruptcy Court 4 for the Central District of California 5 Honorable Barry Russell, Bankruptcy Judge, Presiding 6 Appearances: Appellant Craig Hart, pro se, on brief. 7 8 Before: TAYLOR, DUNN, and KURTZ, Bankruptcy Judges. 9 INTRODUCTION 10 The bankruptcy court dismissed chapter 71 debtor Craig 11 Hart’s first amended adversary complaint for lack of standing. 12 The Debtor appealed. We AFFIRM the bankruptcy court. 13 FACTS2 14 In 2006, Carole Pinkey-Hart, the Debtor’s wife, obtained a 15 loan that allowed her to purchase residential real property in 16 Los Angeles, California (the “Property”). The obligation to 17 18 *** After examination of the briefs and record, and after 19 notice to the Debtor, in an order entered January 28, 2015, the 20 Panel unanimously determined that oral argument was not needed for this appeal. See Fed. R. Bankr. P. 8019(b); 9th Cir. BAP 21 Rule 8019-1. 22 1 Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 23 All “Rule” references are to the Federal Rules of Bankruptcy 24 Procedure and all “Civil Rule” references are to the Federal Rules of Civil Procedure. 25 2 We exercise our discretion to take judicial notice of 26 documents electronically filed in the adversary proceeding and 27 in the underlying bankruptcy case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th 28 Cir. BAP 2003).
1 repay the loan was evidenced by a promissory note in favor of 2 Countrywide Bank, N.A. and secured by a deed of trust against 3 the Property. The deed of trust identified Mrs. Pinkey-Hart as 4 the borrower, “a married woman [holding title to the Property] 5 as her sole and separate property.” The Debtor 6 contemporaneously executed and recorded a quitclaim deed, in 7 which he “remise[d], release[d] and quitclaim[ed]” any interest 8 in the Property to Mrs. Pinkey-Hart. 9 Mrs. Pinkey-Hart eventually defaulted on the loan, and a 10 non-judicial foreclosure followed. Bank of America, N.A., as 11 successor by merger to BAC Home Loans Servicing, LP fka 12 Countrywide Home Loans Servicing LP (“BOFA”) acquired title 13 pursuant to a trustee’s deed upon sale recorded in September of 14 2011. 15 BOFA then initiated an unlawful detainer action against 16 Mrs. Pinkey-Hart in California state court. Almost a year and a 17 half later, in March 2013, it obtained a judgment for 18 restitution and possession of the Property. It later acquired a 19 writ of possession. 20 Just four days after entry of the unlawful detainer 21 judgment, the Debtor, pro se, filed a chapter 13 petition. 22 Mrs. Pinkey-Hart was not a joint debtor. In addition to credit 23 card debt, the Debtor scheduled the Property with a current 24 value of $97,000 as an asset and listed Bank of America as a 25 creditor, with a claim secured by the Property in an amount 26 “TBD.” Soon thereafter, the Debtor voluntarily converted to 27 28
1 chapter 7.3 2 The Debtor then commenced an adversary proceeding against 3 BOFA, the substituted trustee, and other banks and mortgage 4 industry entities (collectively, the “Defendants”). An amended 5 adversary complaint (“FAC”) alleged fraud and forgery in 6 relation to the assignment of the deed of trust and, thus, 7 alleged that the foreclosure was invalid. 8 The Defendants moved to dismiss the FAC pursuant to Civil 9 Rule 12(b)(6). Among other things, they argued that dismissal 10 with prejudice was warranted based on the Debtor’s lack of 11 standing to bring the claims in the adversary proceeding as he 12 had no ownership interest in the Property and was not a party to 13 the loan secured by the deed of trust and as such claims could 14 only be asserted by the chapter 7 trustee. 15 The Debtor opposed, arguing that his claims were properly 16 pled and reiterating his arguments of fraud and forgery. He, 17 however, never addressed BOFA’s standing argument; his only 18 reference to standing focused on BOFA as he stated that it had 19 “refused to establish, and in fact obfuscate [sic] who really 20 ha[d] the legal standing to foreclose.” 21 After a hearing on the motion, the bankruptcy court agreed 22 with the Defendants and entered an order dismissing the FAC with 23 prejudice. The Debtor timely appealed.4 24 25 3 In the bankruptcy case, BOFA later moved for and obtained 26 a stay relief order based on its unlawful detainer judgment. 27 4 While this appeal was pending, the Debtor received his 28 chapter 7 discharge on September 3, 2013.
1 JURISDICTION 2 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 3 §§ 1334 and 157(b)(2). We have jurisdiction under 28 U.S.C. 4 § 158. 5 ISSUE 6 Whether the bankruptcy court erred by dismissing the FAC. 7 STANDARD OF REVIEW 8 We review de novo the bankruptcy court’s dismissal under 9 Civil Rule 12(b)(6). Barnes v. Belice (In re Belice), 461 B.R. 10 564, 572 (9th Cir. BAP 2011). 11 DISCUSSION 12 Under Civil Rule 12(b)(6), made applicable in adversary 13 proceedings by Rule 7012, the bankruptcy court may dismiss an 14 adversary complaint for “failure to state a claim upon which 15 relief can be granted.” It may rely on judicially noticed facts 16 to establish that an adversary complaint does not state a claim 17 for relief. See Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 18 1005, 1016 n.9 (9th Cir. 2012). And, it may consider the 19 existence and content of documents referenced in the complaint 20 when authenticity is uncontested and the plaintiff necessarily 21 relied upon such documents in his complaint. See United States 22 v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Lee v. City of 23 L.A., 250 F.3d 668, 688 (9th Cir. 2001). 24 On appeal, the Debtor again fails to address his lack of 25 standing to pursue the claims in the adversary proceeding. 26 Instead, he argues the merits of the litigation. As a result, 27 he waived the ability to contest the bankruptcy court’s 28 determination that he lacked standing. See Padgett v. Wright,
1 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam) (arguments 2 “not specifically and distinctly raised and argued in 3 appellant’s opening brief” are deemed waived). As this was the 4 only issue legitimately before us on appeal, we must affirm. 5 But, based upon our review the record, we conclude that the 6 bankruptcy court did not err when it dismissed the FAC. The 7 record confirms that at the time of the loan, the creation and 8 assignment of the related trust deed, and the foreclosure under 9 that trust deed, the Debtor was not a borrower of loan proceeds, 10 a trustor of the trust deed, or an owner of the Property. Upon 11 purchase in 2006, Mrs. Pinkey-Hart took legal title to the 12 Property as her sole and separate property, and the Debtor 13 contemporaneously executed and recorded a quitclaim deed, in 14 which he disclaimed any interest in the Property. The Debtor, 15 thus, had no legal interest in the Property. See Cal. Evid. 16 Code § 662; see also Wolfe v. Jacobson (In re Jacobson), 17 676 F.3d 1193, 1201 (9th Cir. 2012). 18 To the extent that the Debtor had a possessory interest in 19 the Property,5 any such interest was insufficient to confer 20 standing in a dispute which challenged the loan, loan documents, 21 and foreclosure under the trust deed securing Mrs. Pinkey-Hart’s 22 obligation to repay the loan. Standing exists only for those 23 parties who demonstrate that the conduct complained of caused an 24 “injury in fact” to them and that a favorable judgment would 25 26 5 The record does not establish that the Debtor had such a 27 possessory interest at the time that this appeal was initiated or continues to be in possession as of the date of this 28 Memorandum.
1 redress this injury. Lujan v. Defenders of Wildlife, 504 U.S. 2 555, 560-61 (1992). Here, the only rights and injuries at 3 issue, if any, in the adversary proceeding and on appeal 4 appropriately belonged to Mrs. Pinkey-Hart. 5 And finally, if the Debtor’s ephemeral relation to the loan 6 and resultant foreclosure actually created legitimate claims, 7 those claims belonged to his chapter 7 estate, and only the 8 chapter 7 trustee was entitled to pursue them. While this 9 appeal was pending, the Debtor received his chapter 7 discharge; 10 but, the bankruptcy case remains open and the trustee has never 11 abandoned these unscheduled claims. 12 CONCLUSION 13 Based on the foregoing, we AFFIRM. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28