Opinion
No. 14-16051
05-19-2016
GRICELDA ROSSETTO, Plaintiff-Appellant, v. WELLS FARGO HOME MORTGAGE, INC.; et al., Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 2:14-cv-00142-GMN-CWH MEMORANDUM Appeal from the United States District Court for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding Submitted May 10, 2016 San Francisco, California Before: McKEOWN and FRIEDLAND, Circuit Judges and LEFKOW, Senior District Judge.
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).
The Honorable Joan H. Lefkow, Senior District Judge for the U.S. District Court for the Northern District of Illinois, sitting by designation.
Gricelda Rossetto appeals from the district court's dismissal of her complaint against Wells Fargo Bank, N.A. and Mortgage Electronic Registration Systems, Inc. (MERS), to quiet title on her mortgaged property based on claimed false recordation of trust deed documents. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Wells Fargo was improperly named in the complaint as Wells Fargo Home Mortgage.
We review de novo a district court's decision to dismiss for failure to state a claim. Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1133 (9th Cir. 2012) . On this appeal, however, Rossetto takes no issue with any of the district court's reasons for dismissal. Instead, she argues for the first time that this court should recognize a Nevada right of action by analogy to an Arizona statute imposing liability on a person who records a false or forged lien or encumbrance against real property. Ariz. Rev Stat. § 33-420. She relies vaguely on In re MERS, 754 F.3d 772, 781-84 (9th Cir. 2014), which reversed a judgment dismissing a claim in light of the Arizona Court of Appeals' interpretation of § 33-420 in Stauffer v. U.S. Bank National Association, 308 P.3d 1173, 1178 (Ariz. Ct. App. 2013) (holding "that an action to clear title of a false or fraudulent document that asserts an interest in real property may be joined with an action for damages under § 33-420.A").
Her failure to raise issues in the district court and arguments in her opening brief results in their waiver. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). --------
Although we have discretion to consider issues of law raised for the first time on appeal, see, e.g., Myers v. Merrill Lynch & Co., 249 F.3d 1087, 1088 (9th Cir. 2001), we decline to do so in this case, because this is not a case where "the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court." United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990).
Likewise, the district did not abuse its discretion in dismissing with prejudice after Rossetto acquiesced in a motion to lift the automatic stay in her bankruptcy proceeding, failed in both quiet title actions to oppose a motion to dismiss, raises no substantive error on appeal, and even at this late date proffers no facts in support of a viable cause of action under Nevada law. See Coal. to Defend Affirmative Action, 674 F.3d at 1133 (reviewing decision to dismiss with prejudice for an abuse of discretion).
AFFIRMED.