                                                          FILED
                                                           NOV 10 2014
 1                         NOT FOR PUBLICATION
                                                       SUSAN M. SPRAUL, CLERK
 2                                                       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. NC-13-1400-JuKuPa
                                   )
 6   RICHARD JOHN MULLIN and       )        Bk. No. NC-12-33539
     GAYLE ANNE HARSMA,            )
 7                                 )        Adv. No. NC-13-3026
                    Debtors.       )
 8   ______________________________)
                                   )
 9   RICHARD JOHN MULLIN;          )
     GAYLE ANNE HARSMA,            )
10                                 )
                    Appellants,    )
11                                 )
     v.                            )        M E M O R A N D U M*
12                                 )
     WELLS FARGO BANK, N.A.        )
13                                 )
                    Appellee.      )
14   ______________________________)
15                  Argued and Submitted on October 23, 2014
                          at San Francisco, California
16
                           Filed - November 10, 2014
17
               Appeal from the United States Bankruptcy Court
18                 for the Northern District of California
19         Honorable Dennis Montali, Bankruptcy Judge, Presiding
     _________________________
20
     Appearances:     Michael James Yesk, Esq. argued for appellants;
21                    Robert Collings Little, Esq. of Anglin,
                      Flewelling, Rasmussen, Campbell & Trytten LLP
22                    argued for appellee.
                           ________________________
23
     Before:   JURY, KURTZ, and PAPPAS, 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.
28 See 9th Cir. BAP Rule 8013-1.

                                      -1-
 1        Debtors Richard Mullin and Gail Harsma appeal from the
 2   bankruptcy court’s order dismissing with prejudice their first
 3   and second amended adversary complaints filed against appellees,
 4   Wells Fargo Bank, N.A. (WFB), Wells Fargo Home Mortgage,
 5   Cal-Western Reconveyance Corporation (Cal-Western), and Deutsche
 6   Bank National Trust Company as Trustee for World Savings
 7   Remic 27.    Finding no error, we AFFIRM.
 8                                I.   FACTS
 9   A.   Prepetition Events
10        In 2006, debtors obtained a $465,000 loan from WFB’s
11   predecessor World Savings Bank, FSB (World Savings), which was
12   secured by a deed of trust (DOT) recorded against their real
13   property located in San Rafael, California.
14        In January 2008, World Savings changed its name to Wachovia
15   Mortgage, FSB (Wachovia).    In November 2009, Wachovia merged
16   with WFB.
17        Debtors defaulted on the loan at the end of 2009, and WFB
18   initiated nonjudicial foreclosure proceedings against the
19   property in 2010.    A notice of default (NOD) was recorded in
20   July 2010.    Two months later, a substitution of trustee (SOT)
21   was recorded naming Cal-Western as trustee.    A notice of
22   trustee’s sale was recorded in October 2011, and again in
23   January 2012.    The total amount of indebtedness at that point
24   had reached $543,301.
25        A trustee’s sale was conducted on May 1, 2012.    WFB took
26   ownership of the property by virtue of a credit bid, and a
27   trustee’s deed upon sale (TDUS) was recorded on May 8, 2012.
28   This document incorrectly called WFB “Wells Fargo Home Mortgage,

                                       -2-
 1   A Division Of Wells Fargo Bank, N.A.”      Consequently, a
 2   corrective TDUS was recorded on May 17, 2012, specifying “Wells
 3   Fargo Bank, N.A.” as grantee.
 4            Shortly after the foreclosure, WFB filed a lawsuit against
 5   debtors in the Marin County Superior Court seeking equitable
 6   relief and damages.      WFB alleged that debtors had carried out an
 7   illegal scheme to reconvey the DOT without its knowledge or
 8   consent and had attempted to deprive it of its right to recover
 9   its security for the loan.      WFB further alleged that debtors
10   recorded various documents that purported to indicate that its
11   NOD was rescinded, the DOT had been modified to reflect that the
12   note had been paid in full, and the DOT reconveyed as if the
13   underlying obligation had been paid in full.      WFB sought
14   cancellation of the various documents and to quiet title and
15   alleged causes of action for fraud and notary liability.
16   Attached to the complaint were the documents that debtors
17   allegedly had fraudulently recorded.
18   B.       Bankruptcy Events1
19            Debtors filed their joint petition under chapter 132 on
20   December 19, 2012, which stayed the state court proceeding.        WFB
21
22        1
          We have exercised our discretion to independently review
23 several electronically filed documents in debtors’ underlying
   bankruptcy case in order to develop a fuller understanding of the
24 record. See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert,
   Inc.), 887 F.2d 955, 957–58 (9th Cir. 1989).
25
        2
26        Unless otherwise indicated, all chapter and section
   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
27 “Rule” references are to the Federal Rules of Bankruptcy
   Procedure and “Civil Rule” references are the Federal Rules of
28 Civil Procedure.

                                       -3-
 1   moved for relief from stay.    Debtors then filed an emergency
 2   motion to enforce the automatic stay in the bankruptcy court,
 3   alleging that the state court was holding case management
 4   hearings in violation of the stay.     The bankruptcy court denied
 5   debtors’ request for an emergency stay and set the matter to be
 6   heard at WFB’s relief from stay hearing.    At that hearing, the
 7   court orally issued an order to show cause why debtors’ case
 8   should not be dismissed because they were ineligible for
 9   chapter 13 relief, and all matters were continued to
10   February 20, 2013.
11        At the February hearing, the bankruptcy court did not
12   dismiss debtors’ case, but ordered them to file an adversary
13   proceeding against WFB by February 27, 2013, and also ordered
14   them to begin making adequate protection payments of $2,100 per
15   month to WFB.
16        1.     The Adversary Proceeding
17        On February 27, 2013, debtors as pro se plaintiffs
18   commenced the adversary proceeding from which this appeal
19   arises.   The adversary proceeding cover sheet states the causes
20   of action are “Wrongful Foreclosure/Quiet Title & Rescind [sic]
21   of Sale of Real Property/Tender of Default Amount at the Time of
22   Default.”    Debtors did not organize their complaint along these
23   lines, but alleged causes of action based on variations of
24   wrongful foreclosure and violations of state and federal
25   statutory law.    Due to the length of the complaint, we recite
26   an abbreviated version of the causes of action which all revolve
27   around WFB’s standing to foreclose on their property.
28        In their first cause of action, debtors sought a

                                     -4-
 1   determination of the extent and validity of the lien and quiet
 2   title.   Debtors alleged that WFB was neither the holder of the
 3   note nor did it have the right to enforce it.     One basis for
 4   this allegation was the securitization of the loan.     In that
 5   process the loan was sold as part of a mortgage backed
 6   securities trust, and thus the lender no longer had any interest
 7   in the loan or note and no power to transfer it.     Debtors also
 8   alleged that the purported trustee sale was in violation of
 9   numerous state and federal laws, including the Fair Debt
10   Collection Practices Act (FDCPA).
11        In their second cause of action to recover money for false
12   recorded documents and notary fraud, debtors alleged that
13   essentially all the documents that had been recorded in
14   connection with the foreclosure were false for various reasons,
15   including, but not limited to, robo-signing violations.
16        In their third cause of action, debtors sought declaratory
17   relief seeking to have all the documents recorded in connection
18   with the foreclosure declared null and void on the grounds that
19   WFB did not have standing to enforce the note.
20        Debtors’ fourth cause of action was a contingent claim for
21   credit for third party payments.     Debtors alleged that if any
22   entity could come forward and prove itself the owner of the
23   note, debtors would show that they had been discharged by
24   satisfaction of the entire obligation by a combination of
25   payments from themselves plus payments from third party sources.
26   If WFB proved any right to payment on the loan, debtors sought a
27   complete accounting.
28

                                    -5-
 1        2.    WFB’s Motion To Dismiss
 2        WFB filed a motion to dismiss (MTD) the complaint under
 3   Civil Rule 12(b)(6).    Attached to the MTD were judicially
 4   noticeable documents showing the name change of World Savings to
 5   Wachovia and Wachovia’s merger with WFB.    These documents showed
 6   that WFB was the holder of the note and the beneficiary under
 7   the DOT.   Based on these documents and legal authorities cited,
 8   WFB maintained that all of debtors’ causes of action asserted in
 9   the complaint failed to state a claim for relief.
10        In response to the MTD, debtors filed a first amended
11   complaint (FAC).    The FAC did not materially differ from the
12   initial complaint.    In the FAC, debtors again alleged that WFB
13   was not the holder of the note nor did it have the right to
14   enforce the note.    They again sought cancellation of the various
15   documents associated with the foreclosure and requested
16   declaratory relief that such documents were null and void.
17   Debtors also alleged that they exercised their right of
18   redemption and WFB failed to verify the amount due, provide an
19   accounting, or verify the identity of the creditor.    Therefore,
20   debtors maintained that, under California law, the note was no
21   longer secured.    Finally, debtors alleged WFB had violated the
22   FDCPA.
23        In the prayer for relief, debtors requested a decree
24   stating that WFB “never acquired an enforceable interest in the
25   note and DOT as alleged above.”
26        At the hearing on the MTD, after some discussion with the
27   parties, the bankruptcy court treated debtors’ FAC as a
28   “response” to the MTD.    The bankruptcy court opined that the FAC

                                     -6-
 1   was just a “re-shuffling” of the facts, and that the FAC still
 2   came down to the basic contention that WFB did not have standing
 3   to proceed with the foreclosure.        Therefore, the FAC did not
 4   change the bankruptcy court’s analysis with respect to the
 5   pending MTD.      No party objected to the bankruptcy court’s intent
 6   to apply the MTD to the allegations in the FAC.
 7            Without addressing the merits of the MTD as it pertained to
 8   the FAC, debtors’ counsel stated that he should have the
 9   opportunity to file a second amended complaint (SAC) because the
10   California Homeowner’s Bill of Rights (HBOR)3 that went into
11   effect January 1, 2013, applied to debtors’ circumstances.        The
12   bankruptcy court questioned whether that law would apply
13   retroactively since the foreclosure of debtors’ home had taken
14   place in May 2012.      Debtors’ counsel represented that if the
15   HBOR was not applicable, and if none of the other facts alleged
16   would afford relief for debtors in the action, the complaint
17   then should be dismissed.
18            In dismissing the FAC, the court stated:
19            Wells Fargo has the winning argument. The Ninth
              Circuit made it clear that involvements of MERS do not
20
21        3
            The HBOR, and specifically Cal. Civ. Code § 2924.18(a)(2),
     prohibits the practice of “dual tracking” by mortgage servicers
22
     if the borrower is working on securing a loan modification. Cal.
23   Civ. Code § 2924.18(a)(2). When a homeowner completes an
     application for a loan modification, the foreclosure process is
24   essentially paused until the complete application has been fully
     reviewed, and the borrower’s mortgage servicer, trustee,
25   mortgagee, beneficiary, or authorized agent “shall not record a
26   notice of default, notice of sale, or conduct a trustee’s sale
     while the complete first lien loan modification application is
27   pending, and until the borrower has been provided with a written
     determination by the mortgage servicer regarding that borrower’s
28   eligibility for the requested loan modification.” Id.

                                       -7-
 1          - and MERS functioning in the foreclosure process, as
            much as it’s been attacked by countless borrowers and
 2          confusing to countless borrows [sic] and lawyers and
            judges, the Ninth Circuit has made it clear that even
 3          if MERS technically splits the note from the trustee
            by its function, that that [sic] doesn’t jeopard [sic]
 4          -- or deprive the lender from foreclosing.
 5          The bankruptcy court found that the decision in Cervantes
 6   v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1045 (9th Cir.
 7   2011), supported its view.     The court noted that other courts
 8   have rejected various theories that somehow securitization of a
 9   loan diminishes the power of sale.     Finally, the bankruptcy
10   court found that the notion of a robo-signer did not create a
11   fraud if there’s no dispute about the underlying default.     The
12   court concluded that the MTD was “well-taken” and dismissed the
13   FAC with leave to amend only to state a cause of action under
14   the HBOR.    The bankruptcy court entered the order consistent
15   with its decision on May 6, 2013.
16          3.   The SAC
17          A month later, debtors filed the SAC.   In the first cause
18   of action, debtors alleged that the HBOR did not preclude the
19   rescission of the foreclosure sale where the lender has accepted
20   post-petition payments.    The remainder of the SAC contained
21   factual allegations and causes of action similar to those in the
22   FAC.    This time in their prayer for relief, debtors requested an
23   accounting, ongoing protection of the adequate protection order,
24   attorney’s fees and costs, and protections afforded under the
25   HBOR to give them a good faith opportunity to enter into a
26   viable “workout” plan with the lender.
27          4.   WFB’s Second MTD
28          WFB filed a second MTD.   WFB argued that debtors failed to

                                      -8-
 1   state a cause of action under the HBOR because conduct occurring
 2   before its effective date could not give rise to a claim for
 3   relief.     In addition, WFB asserted that the completed and proper
 4   non-judicial foreclosure sale extinguished the lien on the
 5   property and thus there was no lien for debtors to modify.
 6           Debtors opposed, arguing that they were in an active loan
 7   modification and there was no justification to depart from the
 8   protection of the HBOR.     They also asserted that they were
 9   compliant with the adequate protection order issued by the
10   bankruptcy court and therefore WFB would not be prejudiced if
11   the matter were to proceed to trial.     Finally, debtors pointed
12   out there was litigation that resulted in WFB being fined over
13   $3 million dollars and that the person who signed the TDUS on
14   behalf of Cal-Western was a “suspected robo-signor.”     Debtors
15   submitted various exhibits purporting to support these last
16   arguments.4
17           Debtors’ declaration filed in support stated that they were
18   trying to ascertain the merits of WFB’s state court action
19   against them and believed discovery in the adversary proceeding
20   would show there was fraud in the purported foreclosure.     They
21   further declared that “[i]t would appear that this bank is
22
23
         4
          The purpose of a motion to dismiss under Civil
24 Rule 12(b)(6) is simply to test the legal sufficiency of the
   complaint. Therefore, our inquiry is limited to the content of
25 the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d
26 578, 581 (9th Cir. 1983). While some of the exhibits pass muster
   as a public record permissible for consideration in the context
27 of a Civil Rule 12(b)(6) motion, none of them have had any
   bearing on our resolution of any portion of WFB’s second MTD
28 which addressed the applicability of the HBOR.

                                      -9-
 1   guilty of much predatory lending to others such as ourselves.”5
 2           On July 31, 2013, the bankruptcy court entered an order
 3   dismissing debtors’ SAC.     The court found that since all the
 4   alleged misconduct by WFB occurred prior to January 1, 2013, the
 5   effective date of the HBOR, debtors had no viable claim under
 6   that statute.     See Sepehry-Fard v. Aurora Bank FSB, 2013 WL
 7   2239820, at *3 (N.D. Cal. May 21, 2013).     Moreover, the
 8   bankruptcy court noted that it had already dismissed the
 9   remaining causes of action and that debtors were not given leave
10   to revive them.     Therefore, the SAC in its entirety was
11   dismissed.     The court took the hearing on the second MTD off
12   calendar.
13           5.   Post-Dismissal Pleadings
14           After the bankruptcy court issued its order, debtors’
15   counsel filed a pleading consenting to a substitution of
16   attorney which had the effect of leaving debtors representing
17   themselves.
18           Debtors then filed a supplemental response pro se in
19   opposition to WFB’s second MTD.     Debtors stated that they simply
20   wanted to have a workable loan and work out a payment plan to
21   the true creditor.     They also filed an emergency request for
22   enlargement of time under Rule 9006(b), seeking an extension of
23   time before the court ruled on the second MTD so that they could
24   replace their attorney and proceed with their case.     Debtors
25
26       5
          Likewise, consideration of debtors’ declaration is
27 improper in a Civil Rule 12(b)(6) motion. Again, we note that
   the declaration does not have any bearing on the resolution of
28 any portion of WFB’s second MTD.

                                      -10-
 1   maintained that their current attorney was not familiar with
 2   their non-judicial remedies in conjunction with their consumer
 3   rights.
 4          The bankruptcy court received debtors’ supplemental
 5   response after it entered the July 31, 2013 order dismissing the
 6   SAC.    Therefore, the court treated the pleading as a motion for
 7   reconsideration of the dismissal order.        The bankruptcy court
 8   found the pleading simply repeated arguments previously made and
 9   rejected by the court and thus there was no basis for
10   reconsideration under Rules 9023 or 9024.        The court denied the
11   motion by order entered on August 5, 2013, and reiterated that
12   the adversary proceeding remained dismissed with prejudice.
13          Debtors timely appealed from this order.
14                            II.    JURISDICTION
15          The bankruptcy court had jurisdiction under 28 U.S.C.
16   §§ 1334 and 157(b)(2)(K).      We have jurisdiction under 28 U.S.C.
17   § 158.
18                               III.    ISSUES
19          A.   Whether the bankruptcy court erred in dismissing
20   debtors’ FAC;
21          B.   Whether the bankruptcy court erred in dismissing
22   debtors’ SAC;
23          C.   Whether the bankruptcy court abused its discretion in
24   dismissing the SAC with prejudice; and
25          D.   Whether the bankruptcy court abused its discretion by
26   treating debtors’ supplemental response as a motion for
27   reconsideration and then denying it.
28

                                        -11-
 1                        IV.    STANDARDS OF REVIEW
 2        We review a bankruptcy court’s decision to grant a motion
 3   to dismiss an adversary complaint de novo.      Movsesian v.
 4   Victoria Versicherung AG, 670 F.3d 1067, 1071 (9th Cir. 2012)
 5   (en banc).
 6        We review the bankruptcy court’s decision to dismiss an
 7   adversary complaint without leave to amend for an abuse of
 8   discretion.   Henry A. v. Willden, 678 F.3d 991, 998 (9th Cir.
 9   2012).   We also review for an abuse of discretion a denial of a
10   motion for reconsideration.      First Ave. W. Bldg. LLC v. James
11   (In re OneCast Media, Inc.), 439 F.3d 558, 561 (9th Cir. 2006).
12        In determining whether the bankruptcy court abused its
13   discretion we first determine de novo whether the trial court
14   identified the correct legal rule to apply to the relief
15   requested and then, if the correct legal standard was applied,
16   we determine whether the court’s application of that standard
17   was “(1) illogical, (2) implausible, or (3) without support in
18   inferences that may be drawn from the facts in the record.”
19   United States v. Loew, 593 F.3d 1136, 1139 (9th Cir. 2010).
20                               V.   DISCUSSION
21   A.   Standards For Dismissal Under Civil Rule 12(b)(6)
22        Rule 7012(b) makes Civil Rule 12(b)(6) applicable to
23   adversary proceedings.     When ruling on a motion to dismiss under
24   Civil Rule 12(b)(6), “we accept all factual allegations in the
25   complaint as true and construe the pleadings in the light most
26   favorable to the nonmoving party.”       Movsesian, 629 F.3d at 905.
27   However, we need not accept as true allegations that contradict
28   matters properly subject to judicial notice or by exhibit.      See

                                       -12-
 1   Mullis v. United States Bankr. Ct., 828 F.2d 1385, 1388 (9th
 2   Cir. 1987).    Moreover, we are not required to accept as true
 3   allegations that are merely conclusory, unwarranted deductions
 4   of fact, or unreasonable inferences.     See Clegg v. Cult
 5   Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).
 6        We then must determine whether the facts alleged are
 7   sufficient to show that the plaintiff has a plausible claim for
 8   relief.    Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing
 9   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).       “A
10   plaintiff’s obligation to provide the grounds of his entitlement
11   to relief requires more than labels and conclusions, and a
12   formulaic recitation of the elements of a cause of action will
13   not do.”    Twombly, 550 U.S. at 555.   Determining whether a
14   complaint states a plausible claim for relief will “be a
15   context-specific task that requires the reviewing court to draw
16   on its judicial experience and common sense.”     Iqbal, 129 S.Ct.
17   at 1950.    In the end, the determinative question is whether
18   there is any set of “facts that could be proved consistent with
19   the allegations of the complaint” that would entitle plaintiff
20   to some relief.    Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514
21   (2002).    If the allegations show that relief is barred as a
22   matter of law, the complaint is subject to dismissal.     Jones v.
23   Bock, 549 U.S. 199, 215 (2007).
24        Finally, the purpose of a motion to dismiss under Civil
25   Rule 12(b)(6) is simply to test the legal sufficiency of the
26   complaint.    Therefore, our narrow scope of review of the orders
27   on appeal does not allow us to reach the merits of any issue,
28   and our inquiry is limited to the content of the complaint.

                                     -13-
 1   N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d at 581.
 2   B.   The Bankruptcy Court Did Not Err In Dismissing The FAC.
 3        On appeal, debtors argue the dismissal of the FAC was
 4   improper because the bankruptcy court made inaccurate factual
 5   findings and legal conclusions, and its attempt to dispose of
 6   the adversary proceeding on the basis of rote statements of fact
 7   and law, that did not even apply to their case, constituted an
 8   abuse of discretion.   In this regard, debtors assert that the
 9   bankruptcy court improperly mentioned MERS when MERS is not, and
10   has never been, a party to this action and they never alleged
11   any claim against MERS or based any of their claims on MERS’s
12   practice of splitting the note from the deed of trust.   Debtors
13   also contend that the court improperly relied on a
14   securitization theory that they never alleged in dismissing
15   their FAC.   Finally, debtors argue that the bankruptcy court
16   incorrectly found that they never disputed the default when they
17   disputed the amount owed and also alleged that the default was
18   noticed by the wrong party in the FAC.
19        Putting these assignments of error aside, debtors
20   acknowledge that the crux of their allegations in the FAC relate
21   to their challenge to WFB’s standing to initiate foreclosure
22   proceedings against their property despite not being the true
23   beneficiary under the DOT.   As borrowers on the loan, they
24   maintain that they have standing to challenge foreclosure
25   conducted at the direction of the incorrect party, citing Glaski
26   v. Bank of Am., N.A., 218 Cal.App.4th 1079, 1094 (Cal. Ct. App.
27   2013) in support.
28        We are not persuaded by these arguments.   The record shows

                                    -14-
 1   that the bankruptcy court was fully aware that the crux of
 2   debtors’ original complaint and FAC was their allegation that
 3   WFB did not have standing to foreclose on their property.      We
 4   interpret the court’s comments at the dismissal hearing to
 5   simply provide a context for this litigation by noting a long
 6   line of case law that has rejected standing arguments such as
 7   here, based on improper party assertions or chain of title
 8   issues.
 9        Error, or not, our review of the bankruptcy court’s
10   decision to dismiss the FAC is de novo.    De novo means that we
11   examine a matter anew, as if no decision previously had been
12   rendered, giving no deference to the bankruptcy court’s prior
13   determinations.    Dawson v. Marshall, 561 F.3d 930, 933 (9th Cir.
14   2009).    We may affirm the bankruptcy court’s decision on any
15   grounds supported by the record.    Shanks v. Dressel, 540 F.3d
16   1082, 1086 (9th Cir. 2008).
17        “[H]owever inartfully pleaded,” the FAC which was filed pro
18   se must be held to “less stringent standards than formal
19   pleadings drafted by lawyers” and can only be dismissed for
20   failure to state a claim if it appears “‘beyond doubt that the
21   plaintiff can provide no set of facts in support of his claim
22   which would entitle him to relief.’”    Nordeen v. Bank of Am.,
23   N.A. (In re Nordeen), 495 B.R. 468, 477 (9th Cir. BAP 2013).
24   “However, no matter how a complaint is worded, ultimately it
25   must state a legally cognizable claim entitling the claimant to
26   some relief in order to survive a motion to dismiss.”    Id.    None
27   of debtors’ allegations, on the whole or specifically, state a
28   cause of action to invalidate the foreclosure sale or the

                                     -15-
 1   trustee’s deed conveying the property to WFB or to support an
 2   award of monetary damages.
 3        While debtors label their causes of action somewhat
 4   differently, their causes of action seeking to set aside the
 5   trustee’s sale can be summarized as:     wrongful foreclosure,
 6   voiding or cancellation of the recorded trustee’s deed upon
 7   sale, quiet title, and declaratory relief.
 8        1.   Wrongful Foreclosure
 9        Under California law, the elements to maintain a wrongful
10   foreclosure claim are the same as for obtaining the equitable
11   set-aside of a trustee’s sale.    See Lona v. Citibank, N.A.,
12   202 Cal.App.4th 89, 104 (Cal. Ct. App. 2011).     A plaintiff must
13   allege that: “(1) defendants caused an illegal, fraudulent, or
14   willfully oppressive sale of the property pursuant to a power of
15   sale in a mortgage or deed of trust; (2) the plaintiff suffered
16   prejudice or harm; and (3) the plaintiff tendered the amount of
17   the secured indebtedness or was excused from tendering.”     Chavez
18   v. Indymac Mortg. Servs., 219 Cal.App.4th 1052, 1062 (Cal. Ct.
19   App. 2013).   Absent any evidence to the contrary, a nonjudicial
20   foreclosure sale is presumed to have been conducted regularly
21   and fairly.   See Cal. Civ. Code § 2924.
22        Although debtors do not discuss the above-cited legal
23   elements, they alleged in the FAC:      (1) the foreclosure sale was
24   illegal because WFB was not the holder of their note and thus
25   did not have the right to enforce the note; (2) due to WFB’s
26   lack of standing and other irregularities, the NOD, the notice
27   of trustee sale, and the corrective TDUS are all false, suffer
28   from fatal defects, and are “void or voidable”; (3) the false

                                      -16-
 1   documents may cause injury to debtors because they will be
 2   required to pay the wrong party and will be forcefully removed
 3   from the property by parties with no enforceable interest; and
 4   (4) the unlawful instruments put a cloud on title.
 5            We do not need to accept allegations in debtors’ FAC (or
 6   variations of them) as true when they are contradicted by
 7   judicially noticeable documents.6        The exhibits attached to
 8   WFB’s MTD shows that WFB obtained a beneficial interest in
 9   debtors’ DOT as a successor-in-interest due to a merger with
10   World Savings.      The note and DOT both refer to the lender as
11   “World Savings Bank, FSB, its successors and/or assignees.”         The
12   documents show there was no break in the chain of title.
13   Accordingly, there can be no reasonable dispute that World
14   Savings Bank became Wachovia, which was merged into Wells Fargo.
15   WFB was the holder of the note and had a right to enforce the
16   DOT after the merger with World Savings.        See Christiansen v.
17   Wells Fargo Bank, N.A., 2013 WL 1832644, at *3 (N.D. Cal. May 1,
18   2013) (“Many courts have recognized Wells Fargo’s interest in
19
          6
20          We take judicial notice of the exhibits attached to WFB’s
     request for judicial notice in connection with the MTD and the
21   exhibits attached to debtors’ FAC. These documents and their
     contents are “fact[s] that [are] not subject to reasonable
22
     dispute because [they] . . . (2) can be accurately and readily
23   determined from sources whose accuracy cannot reasonably be
     questioned.” Fed. R. Evid. 201(b); see Gamboa v. Tr. Corps &
24   Cent. Mortg. Loan Servicing Co., 2009 WL 656285, at *3 (N.D. Cal.
     March 12, 2009) (noting that deeds of trust are “part of the
25   public record and are easily verifiable”); Marder v. Lopez,
26   450 F.3d 445, 448 (9th Cir. 2006) (“A court may consider evidence
     on which the complaint ‘necessarily relies’ if: (1) the complaint
27   refers to the document; (2) the document is central to the
     plaintiff’s claim; and (3) no party questions the
28   authenticity.”).

                                       -17-
 1   the note and deed of trust following World Savings Bank’s name
 2   change and eventual merger with Wells Fargo.”).
 3        Debtors do not challenge the accuracy of the evidence
 4   chronicling the succession of Wells Fargo from Wachovia and
 5   World Savings.   Rather, they wish to inspect the original note
 6   and contend that the written communications received by them
 7   contain irreconcilable discrepancies as to the identity of the
 8   real party-in-interest to the DOT and note.   However,
 9   “California’s non judicial foreclosure scheme . . . broadly
10   allows a trustee, mortgagee, beneficiary, or any of their agents
11   to initiate non judicial foreclosure.   Accordingly, the statute
12   does not require a beneficial interest in both the Note and the
13   Deed of Trust to commence a non judicial foreclosure sale.”
14   Lane v. Vitek Real Estate Indus. Grp., 713 F.Supp.2d 1092, 1099
15   (E.D. Cal. 2010).
16        Debtors cite Glaski, 218 Cal.App.4th 1079, as standing for
17   the proposition that a party may plead a wrongful foreclosure
18   action if the complaint alleges specific facts showing the
19   foreclosure was not initiated by the correct person.     But
20   debtors have not alleged any specific facts that support such a
21   claim and Glaski does not save their cause of action for
22   wrongful foreclosure.   In Glaski, the California Court of Appeal
23   for the fifth Appellate District found:
24        [A] borrower may challenge the securitized trust’s
          chain of ownership by alleging the attempts to
25        transfer the deed of trust to the securitized trust
          (which was formed under New York law) occurred after
26        the trust’s closing date. Transfers that violate the
          terms of the trust instrument are void under New York
27        law, and borrowers have standing to challenge void
          assignments of their loans[.]
28

                                    -18-
 1   Glaski, 218 Cal.App.4th at 1083.    This narrow holding does not
 2   stand for the broad proposition cited by debtors.     Moreover,
 3   their citation to Glaski, which is a securitization case, is
 4   curious given their position that they do not rely on a
 5   securitization theory in their FAC.
 6        At the hearing, debtors’ counsel argued that the recently
 7   published case of Fonteno v. Wells Fargo Bank, N.A.,
 8   228 Cal.App.4th 1358 (Cal. App. 2014) also supported their right
 9   to   challenge the foreclosure sale.    There, the California
10   appellate court held that residential mortgage borrowers are
11   entitled to seek the equitable cancellation of a trustee’s deed,
12   issued following a nonjudicial foreclosure sale, based on the
13   lender’s failure to meet with the borrowers prior to foreclosure
14   as required by the National Housing Act (NHA) regulations which
15   were incorporated into their deed of trust.     Nowhere do debtors
16   allege that WFB failed to meet with them prior to foreclosure as
17   required by the NHA nor do they allege that the NHA regulations
18   were incorporated into their DOT.     Accordingly, Fonteno is
19   factually distinguishable and does not assist debtors.
20        Nor can debtors state a claim for wrongful foreclosure
21   based on their allegation that no substitution of trustee was
22   effected before the purportedly new trustee recorded a notice of
23   default in violation of Cal. Civ. Code § 2924(a)(1).     The
24   judicially noticeable NOD shows that it was signed by WFB’s
25   agent and such delegation is expressly authorized by Cal. Civ.
26   Code § 2924(a)(1) (stating that the notice of default may be
27   filed by the “trustee, mortgagee, or beneficiary, or any of
28   their authorized agents.”).   See Jenkins, 216 Cal.App.4th at 515

                                    -19-
 1   (agent of beneficiary is authorized to record notice of
 2   default); Lane, 713 F.Supp.2d at 1099.
 3        Debtors also assert that the SOT “was invalid because the
 4   new trustee attempted to appoint itself as trustee when the Deed
 5   of Trust explicitly stated that only the lender could exercise
 6   that right.”   However, the SOT is signed by WFB’s “Attorney In
 7   Fact.”   Further, the DOT attached to their FAC states that they
 8   “agree[d] that Lender may at any time appoint a successor
 9   trustee and that person shall become the Trustee under this
10   Security Instrument as originally named as Trustee.”
11        In the end, none of debtors’ allegations state a cause of
12   action for wrongful foreclosure.    Even if there were
13   irregularities, debtors would not be entitled to relief because
14   they cannot allege any prejudice.     The allegations in the FAC
15   demonstrate that debtors lost their home through nonjudicial
16   foreclosure because they defaulted on the home loan, and not
17   because of WFB’s lack of authority or any other irregularities
18   in the foreclosure process.   Although debtors argue on appeal
19   that they dispute the default and the amount owed, there are no
20   factual allegations in the FAC to support these legal
21   conclusions.   Instead, debtors effectively concede that they
22   were in default in the absence of any factual allegations
23   showing that they had made the required payments on their home
24   loan.
25        On the tender of payment element, debtors did not even
26   mention this element on appeal.    See Padgett v. Wright, 587 F.3d
27   983, 985 n.2 (9th Cir. 2003) (refusing to consider matters on
28   appeal that were not specifically and distinctly raised and

                                    -20-
 1   argued in appellant’s opening brief).    When pressed at oral
 2   argument on this point, debtors’ counsel explained that there
 3   are equitable exceptions to the tender rule.    For example,
 4   tender is not required when the lender has not yet foreclosed
 5   and has allegedly violated laws related to avoiding the
 6   necessity for a foreclosure.    See Pfeifer v. Countrywide Home
 7   Loans, Inc., 211 Cal.App.4th 1250, 1280 (Cal. App. 2012).
 8   Pfeifer, like Fonteno, involved the violation of the NHA which
 9   required a pre-foreclosure face-to-face meeting to discuss
10   alternatives to foreclosure.    While we acknowledge there are
11   exceptions to the tender rule under California law, there were
12   no allegations in the FAC that any exception was applicable
13   under these circumstances.
14        In sum, debtors’ FAC not only fails to allege facts that
15   meet the critical elements for a wrongful foreclosure cause of
16   action, but as noted above, it also fails to allege a true
17   irregularity in the proceedings.    It therefore follows that the
18   allegations are insufficient to state a cause of action for
19   voiding or cancellation of the recorded TDUS.
20        2.     Quiet Title
21        The FAC also does not state a plausible claim for quiet
22   title.    The FAC does not adequately allege that debtors are the
23   rightful owners.    The FAC reflects that debtors defaulted on
24   their loan payments and that their property is subject to a DOT.
25   WFB is the beneficiary under the DOT and stands in the shoes of
26   the original lender, World Savings, and has foreclosed on their
27   property.
28        Further, under California law, “[a] borrower may not . . .

                                     -21-
 1   quiet title against a secured lender without first paying the
 2   outstanding debt on which the . . . deed of trust is based.”
 3   Lueras v. BAC Homes Loans Servicing, LP, 221 Cal.App.4th 49, 86
 4   (Cal. Ct. App. 2013).   There is no allegation that such a
 5   payment was made.   Accordingly, this claim is barred as a matter
 6   of law.
 7        3.   Declaratory Relief
 8        In their request for declaratory relief, debtors seek a
 9   declaration, among other things, that “no party owns the note,
10   debt, or DOT.”   Plainly, debtors seek a windfall rather than
11   equitable declaratory relief.   Because debtors’ request for
12   declaratory relief is dependent upon the previous causes of
13   action which have all been dismissed, declaratory relief is not
14   available on the grounds alleged.
15        4.   Remaining Causes of Action
16        Debtors’ FAC also alleged causes of action denominated
17   accounting, right of redemption under Cal. Civ. Code § 2903, and
18   violations of the FDCPA.   Debtors, however, make no arguments on
19   appeal regarding these claims or why those causes of action were
20   improperly dismissed.   “[W]e cannot ‘manufacture arguments for
21   an appellant’ and therefore we will not consider any claims that
22   were not actually argued in appellant’s opening brief.”     Indep.
23   Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003); see
24   Padgett v. Wright, 587 F.3d at 985 n.2.
25        Concerning the violation of the FDCPA, foreclosing on a
26   property pursuant to a deed of trust is not the collection of a
27   debt within the meaning of FDCPA.      Rosal v. First Fed. Bank of
28   Cal., 671 F. Supp. 2d 1111, 1135 (N.D. Cal. 2009).     Further, the

                                     -22-
 1   term “debt collector” under the FDCPA does not include
 2   creditors, mortgage beneficiaries and servicers, or assignees of
 3   a debt.    Wise v. Wells Fargo, 850 F.Supp.2d 1047, 1053 (C.D.
 4   Cal. 2012).    Because WFB owns the loan through the above
 5   described name changes and mergers, it is a creditor/originator
 6   of debtors’ debt and is not a “debt collector.”     See Esquivel v.
 7   Bank of Am., N.A., 2013 WL 682925, at *5-7 (E.D. Cal. Feb. 21,
 8   2013).
 9        In sum, reviewing the dismissal of the FAC de novo, and
10   considering the parties’ arguments on appeal, we find no reason
11   to disagree with the bankruptcy court’s conclusion that under
12   Civil Rule 12(b)(6) the FAC failed to state legally cognizable
13   causes of action and thus dismissal was proper.
14   C.   The Bankruptcy Court Did Not Err In Dismissing the SAC.
15        In their opening brief, debtors do not tell us why the
16   bankruptcy court’s decision to dismiss their SAC was error.      As
17   stated above, we do not consider matters that were not
18   specifically and distinctly raised and argued in their opening
19   brief.    Padgett v. Wright, 587 F.3d at 985 n.2.
20        However, debtors failed to state a claim for relief under
21   the HBOR which took effect on January 1, 2013.      Michael J. Weber
22   Living Trust v. Wells Fargo Bank, N.A., 2013 WL 1196959, at *4
23   (N.D. Cal. March 25, 2013).    “Like federal courts, ‘California
24   courts comply with the legal principle that unless there is an
25   express retroactivity provision, a statute will not be applied
26   retroactively unless it is very clear from extrinsic sources
27   that the Legislature . . . must have intended a retroactive
28   application.’”    Id. at *4.   The HBOR does not state that it has

                                      -23-
 1   retroactive effect.   Id.; see also Sepehry-Fard, 2013 WL
 2   2239820, at *3.   Therefore, the bankruptcy court properly
 3   dismissed debtors’ claims under the HBOR because the facts
 4   alleged relate to conduct that arose prior to the HBOR’s
 5   effective date.
 6   D.   The Bankruptcy Court Did Not Abuse Its Discretion In
          Dismissing The FAC and SAC With Prejudice.
 7
 8        We find no error with the bankruptcy court’s decision to
 9   dismiss the FAC and SAC without leave to amend.   Although a
10   bankruptcy court should grant leave to amend liberally, the
11   court does not err in dismissing a complaint if amendment would
12   be futile.   Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th
13   Cir 2012).   In deciding whether amendment is futile, we are only
14   required to take into account hypothetical amended pleadings
15   containing facts consistent with those already alleged.     Swatz
16   v. KPMG LLP, 476 F.3d 756, 761 (9th Cir. 2007).   In their
17   arguments on appeal, debtors have failed to set forth any
18   factual allegations that sufficiently state all the elements for
19   wrongful foreclosure or for that matter any cause of action.     We
20   thus do not need to decide whether any of the case law cited in
21   their reply brief supports their theories asserted in their FAC
22   or SAC.   In short, debtors have not demonstrated that any viable
23   cause of action exists against WFB or the other defendants.
24   E.   The Bankruptcy Court Did Not Abuse Its Discretion When
          Making Its Post-Dismissal Rulings.
25
26        Finally, debtors assert that the bankruptcy court abused
27   its discretion by failing to address their emergency request for
28   enlargement of time, and by treating their supplemental response

                                    -24-
 1   in opposition to the second MTD as a motion for reconsideration
 2   and then denying it.
 3        The bankruptcy court was within its discretion to consider
 4   debtors’ supplemental response as a motion for reconsideration
 5   when the response was late-filed and received after the
 6   bankruptcy court ruled on the merits of the second MTD.   At that
 7   point, debtors could obtain relief from the ruling by either
 8   filing a motion for reconsideration or by filing an appeal.     We
 9   discern no abuse of discretion in denying the motion when the
10   response failed to meet the requirements for reconsideration
11   under Rules 9023 or 9024 and contained no arguments that would
12   have altered the bankruptcy court’s dispositive ruling.
13        We likewise conclude that the court did not abuse its
14   discretion by failing to grant their emergency request to
15   continue the hearing on the second MTD so that they could hire
16   another attorney.   Debtors argue in their reply brief that the
17   effect of the court’s ruling was to preclude them from
18   meaningfully amending their SAC to demonstrate the applicability
19   of the HBOR.   According to debtors, in this amendment they would
20   allege that WFB as the servicer of their loan had no right to
21   foreclose in its own name.   In that event, they contend that a
22   new NOD would be required bringing them within the time frame of
23   the HBOR’s applicability, post-January 1, 2013.   However, as
24   noted above, debtors failed to allege any violation under Cal.
25   Civ. Code § 2924(a)(1) based on improper party status.    Further,
26   debtors’ request for an extension of time was made after the
27   bankruptcy court ruled so there was no hearing to continue.     We
28   find no abuse of discretion under these circumstances.    United

                                    -25-
 1   States v. Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985) (“The
 2   decision to grant or deny a requested continuance lies within
 3   the broad discretion of the [bankruptcy] court and will not be
 4   disturbed on appeal absent clear abuse of that discretion.”).
 5                           VI.   CONCLUSION
 6        For the reasons stated, we AFFIRM.
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