Glenn W. Bever v. Citimortgage Inc.; Mortgage Electronic Registration Systems, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLENN W. BEVER,
Plaintiff-Appellant,
v.
CITIMORTGAGE INC.; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC.,
Defendants-Appellees.
No. 14-17225
D.C. No. 1:11-cv-01584-AWI-SKO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Glenn W. Bever appeals pro se from the district court’s summary judgment
and dismissal orders in his action alleging violations of the Real Estate Settlement
Procedures Act (“RESPA”) and state law foreclosure-related claims. We have
* 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
DEC 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 28 U.S.C. § 1291. We review de novo. Bourne Valley Court Tr.
v. Wells Fargo Bank, NA, 832 F.3d 1154, 1157 (9th Cir. 2016) (summary
judgment); Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under
Fed. R. Civ. P. 12(b)(6)). We affirm.
The district court properly granted summary judgment on Bever’s claim
under Cal. Civ. Code § 2923.5 because Bever failed to raise a genuine dispute of
material fact as to whether CitiMortgage failed to comply with the foreclosure
procedures imposed by the statute. See Cal. Civ. Code § 2923.5(g) (2011)
(amended 2013) (setting forth requirements that must be satisfied before recording
a notice of default).
The district court properly dismissed Bever’s RESPA claim because Bever
failed to allege facts sufficient to show that his inquiries required a response by the
loan servicer. See 12 U.S.C. § 2605(e) (identifying service-related inquires that
require a loan servicer to respond).
The district court properly dismissed Bever’s remaining state law claims
because Bever failed to state plausible claims for relief. See Hebbe v. Pliler, 627
F.3d at 341-342 (although pro se pleadings are liberally construed, a plaintiff must
still present factual allegations sufficient to state a plausible claim for relief);
Belasco v. Wells, 183 Cal. Rptr. 3d 840, 852 (Ct. App. 2015) (elements of fraud
claim under California law); Lueras v. BAC Home Loans Servicing, LP, 163 Cal.

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Rptr. 3d 804, 835-36 (Ct. App. 2013) (requirements for quiet title under California
law); Lectrodryer v. SeoulBank, 77 91 Cal. Rptr. 2d 881, 883 (Ct. App. 2000)
(elements of unjust enrichment claim under California law).
The district court did not abuse its discretion by requiring Bever to provide
security as a prerequisite to granting his motion for preliminary injunction. See
Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (setting forth standard
of review). We do not consider Bever’s evidentiary objections related to the
motion for preliminary injunction because the merits of the preliminary injunction
have merged into the final judgment. See Nationwide Biweekly Admin. v. Owen,
873 F.3d 716, 730 (9th Cir. 2017) (applying merger doctrine when there is no need
to reach the merits of a preliminary injunction).
The district court did not abuse its discretion by denying Bever’s motions
under Fed. R. Civ. P. 59(e) and 60(b) because Bever did not establish any grounds
for relief. See SEC v. Platform Wireless Int’l Corp., 617 F.3d 1072, 1100 (9th Cir.
2010) (setting forth standard of review and listing grounds warranting
reconsideration under Rules 59(e) and 60(b)).
The district court did not abuse its discretion by denying Bever’s motion for
leave to amend because amendment would have caused an undue delay, been
prejudicial to defendant, and been futile. See Desertrain v. City of Los Angeles,
754 F.3d 1147, 1154 (9th Cir. 2014) (setting forth standard of review).

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We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We reject as meritless Bever’s contentions regarding the scheduling order
and judicial notice.
Upon further review, despite motions to stay the appeal filed by Cal-Western
Reconveyance Corp., which were granted by this court, Cal-Western
Reconveyance Corp. is not a party to this appeal.
AFFIRMED.

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