Keith J. Ponthieux; Chris Duenas; Maria Duenas v. Nationstar Mortgage, LLC; Aztec Foreclosure Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEITH J. PONTHIEUX; CHRIS DUENAS;
MARIA DUENAS,
Plaintiffs-Appellants,
v.
NATIONSTAR MORTGAGE, LLC;
AZTEC FORECLOSURE CORPORATION,
Defendants-Appellees.
No. 22-16603
D.C. No. 2:18-cv-00608-TLN-DB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted November 14, 2023**
Before: SILVERMAN, WARDLAW, and TALLMAN, Circuit Judges.
Keith J. Ponthieux, Chris Duenas, and Maria Duenas appeal pro se from the
district court’s summary judgment in their action alleging claims under the Fair
Debt Collection Practices Act (“FDCPA”) and state law. We have jurisdiction
* 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).
FILED
NOV 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-16603
under 28 U.S.C. § 1291. We review de novo the district court’s ruling on cross-
motions for summary judgment. Guatay Christian Fellowship v. County of San
Diego, 670 F.3d 957, 970 (9th Cir. 2011). We affirm.
The district court properly granted summary judgment for defendants on
plaintiffs’ FDCPA claim because plaintiffs failed to raise a genuine dispute of
material fact as to whether defendants lacked authority to initiate foreclosure
proceedings. See 15 U.S.C. § 1692f(6) (prohibiting the “[t]aking or threatening to
take any nonjudicial action to effect dispossession or disablement of property if . . .
there is no present right to possession of the property . . . .”); Siliga v. Mortg. Elec.
Registration Sys., Inc., 161 Cal. Rptr. 3d 500, 506 (Ct. App. 2013) (“California
courts have held that a trustor who agreed under the terms of the deed of trust that
MERS, as the lender’s nominee, has the authority to exercise all of the rights and
interests of the lender . . . is precluded from maintaining a cause of action based on
the allegation that MERS has no authority to exercise those rights.”), disapproved
of in part on other grounds by Yvanova v. New Century Mortg. Corp., 365 P.3d
845 (Cal. 2016); Debrunner v. Deutsche Bank Nat’l Tr. Co., 138 Cal. Rptr. 3d 830,
835 (Ct. App. 2012) (party need not possess promissory note to foreclose); Far W.
Sav. & Loan Ass’n v. McLaughlin, 246 Cal. Rptr. 872, 875-76 (Ct. App. 1988) (a
deed of trust recorded outside the chain of title is a “wild” document and does not
create any defect in the record title of another).

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The district court properly granted summary judgment for defendants on
plaintiff’s state law claims because plaintiffs failed to raise a genuine dispute of
material fact as to whether defendants violated any state law. See Cal. Civ. Code
§ 1788 et seq.; Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012)
(“The Rosenthal Act mimics or incorporates by reference the FDCPA’s
requirements . . . .”); see also Cal. Civ. Code § 2934a(a)(1)(A) (a substitution of
trustee may be executed and acknowledged by the beneficiary under the deed of
trust); Cal. Civ. Code § 2934a(d)(4) (“Once recorded, the substitution [of trustee]
shall constitute conclusive evidence of the authority of the substituted trustee or his
or her agents to act pursuant to this section . . . .”); Cal. Civ. Code §§ 2924.17,
2924(a)(6) (setting forth requirements for initiating foreclosure proceedings); Cal.
Bus. & Prof. Code § 17200 (prohibiting “any unlawful, unfair or fraudulent
business acts”).
The district court did not abuse its discretion in considering the declaration
of Fay Janati. See SEC v. Phan, 500 F.3d 895, 912-13 (9th Cir. 2007) (setting
forth standard of review and explaining that “a proper foundation [for documentary
evidence submitted on summary judgment] need not be established through
personal knowledge but can rest on any matter permitted by Federal Rule of
Evidence 901(b) or 902” (citation and internal quotation marks omitted)).
AFFIRMED.

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