                                                              FILED
                                                               JUN 05 2018
 1                         NOT FOR PUBLICATION
                                                        SUSAN M. SPRAUL, CLERK
                                                             U.S. BKCY. APP. PANEL
 2                                                           OF THE NINTH CIRCUIT

 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
                              OF THE NINTH CIRCUIT
 4
 5   In re:                        )      BAP No.    NC-17-1217-FBTa
                                   )
 6   JAMES AMAR SINGH,             )      Bk. No.    4:15-bk-40917
                                   )
 7                  Debtor.        )      Adv. Pro. 4:16-ap-04026
     _____________________________ )
 8                                 )
     JAMES AMAR SINGH,             )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )      MEMORANDUM*
11                                 )
     WELLS FARGO BANK, N.A.,       )
12                                 )
                    Appellee.      )
13   ______________________________)
14                    Argued and Submitted on May 25, 2018
                          at San Francisco, California
15
                              Filed – June 5, 2018
16
              Appeal from the United States Bankruptcy Court
17                for the Northern District of California
18      Honorable William J. Lafferty, Bankruptcy Judge, Presiding
19
     Appearances:     Appellant James Amar Singh, pro se, on the brief;
20                    James Z. Margolis argued on behalf of appellant;
                      Robert Collings Little of Anglin Flewelling
21                    Rasmussen Campbell & Trytten LLP argued for
                      appellee Wells Fargo Bank, N.A.
22
23   Before: FARIS, BRAND, and TAYLOR, 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, see
28   9th Cir. BAP Rule 8024-1.
 1                                INTRODUCTION
 2        Appellant James Amar Singh’s nine-year quest to stave off
 3   foreclosure of his home has engendered at least ten bankruptcy
 4   cases and four lawsuits.     In this latest iteration, Mr. Singh
 5   sought chapter 131 bankruptcy protection and filed an adversary
 6   proceeding against appellee Wells Fargo Bank, N.A. (“Wells
 7   Fargo”), seeking a declaration that Wells Fargo lacked any rights
 8   in his real property due to an earlier foreclosure that a state
 9   court jury found to be improper.       In a thoroughly reasoned
10   decision, the bankruptcy court granted Wells Fargo’s motion to
11   dismiss the adversary proceeding with prejudice.
12        On appeal, Mr. Singh largely ignores the bankruptcy court’s
13   analysis and continues to insist, incorrectly, that the jury
14   verdict in his favor permanently bars Wells Fargo’s interest in
15   his property.   We AFFIRM.
16                           FACTUAL BACKGROUND
17   A.   Prelitigation events
18        In January 2006, Mr. Singh obtained a $500,000 loan from
19   Wells Fargo’s predecessor, which was secured by a deed of trust
20   encumbering his residential real property located in Oakland,
21   California (the “Property”).     (We will refer to Wells Fargo and
22   its predecessors collectively as “Wells Fargo.”)       Mr. Singh
23   defaulted on the loan in December 2009, and Wells Fargo recorded
24   a notice of default.   The foreclosure sale of the Property was
25
          1
26          Unless specified otherwise, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all
27   “Rule” references are to the Federal Rules of Bankruptcy
     Procedure, and all “Civil Rule” references are to the Federal
28   Rules of Civil Procedure.

                                        2
 1   scheduled for August 8, 2010.
 2   B.   State and federal litigation
 3        In the span of five years, Mr. Singh initiated ten
 4   bankruptcy cases, most of which were quickly dismissed for
 5   failure to file documents.      He filed his first petition on
 6   August 5, 2010, which stayed the pending foreclosure sale and
 7   allowed him to begin prosecuting his string of civil cases.
 8        1.     The first lawsuit
 9        In October 2011, Mr. Singh filed suit (the “First Lawsuit”)
10   in state court against Wells Fargo to challenge the foreclosure.
11   He asserted six causes of action: (1) elder financial abuse,
12   (2) wrongful foreclosure, (3) breach of contract, (4) intentional
13   infliction of emotional distress, (5) violation of business and
14   professions code, and (6) quiet title.      Wells Fargo removed the
15   First Lawsuit to federal district court.      After the district
16   court denied Mr. Singh’s motion for an injunction barring Wells
17   Fargo from conducting a foreclosure sale, Mr. Singh voluntarily
18   dismissed the First Lawsuit pursuant to Civil Rule 41(a).
19        In July 2012, Wells Fargo purchased the Property at a
20   foreclosure sale and recorded a trustee’s deed upon sale
21   (“Trustee’s Deed”).    Mr. Singh contends that the foreclosure sale
22   was invalid.    He claims that the sale was cancelled when the
23   auctioneer received copies of Mr. Singh’s eighth bankruptcy
24   petition that was filed earlier that day. (Mr. Singh had filed
25   four bankruptcy petitions in the year preceding the foreclosure
26   sale.)    Mr. Singh claims that, nevertheless, Wells Fargo
27   “illegally” purchased the Property after all other bidders had
28   left.

                                         3
 1        2.     The second lawsuit
 2        In December 2012, Mr. Singh filed another lawsuit (the
 3   “Second Lawsuit”) against Wells Fargo in state court.    He alleged
 4   seven causes of action: (1) quiet title, (2) declaratory relief,
 5   (3) preliminary and permanent injunction, (4) cancellation of
 6   instruments, (5) wrongful foreclosure, (6) unjust enrichment, and
 7   (7) fraud.
 8        Wells Fargo again removed the case to the federal district
 9   court.    The district court dismissed Mr. Singh’s complaint
10   without leave to amend for failure to state a claim upon which
11   relief could be granted.    Mr. Singh appealed the decision to the
12   Ninth Circuit Court of Appeals, which affirmed the dismissal in
13   December 2016.
14        3.     The unlawful detainer action
15        Following the foreclosure sale, Wells Fargo filed an
16   unlawful detainer action (the “Unlawful Detainer Action”) in
17   state court.    Mr. Singh apparently challenged the propriety of
18   the sale on grounds that the record does not disclose.    A jury
19   determined that Wells Fargo did not purchase the Property “at a
20   properly conducted trustee sale” and that Wells Fargo “shall take
21   nothing by [its] Complaint” (the “Unlawful Detainer Judgment”).
22        Wells Fargo then recorded a notice of rescission of the
23   Trustee’s Deed (“Notice of Rescission”) as a first step toward a
24   second foreclosure sale.
25        4.     The third lawsuit
26        In March 2015, Mr. Singh filed yet another lawsuit (the
27   “Third Lawsuit”) in state court, alleging that Wells Fargo had no
28   right to resume the foreclosure process because the Unlawful

                                       4
 1   Detainer Judgment had claim preclusive effect.    He asserted
 2   claims for: (1) conversion, (2) slander of title, (3) fraud,
 3   (4) infliction of emotional distress, (5) elder abuse,
 4   (6) declaratory relief, and (7) preliminary and permanent
 5   injunction.   He alleged that he owned the Property free and clear
 6   of Wells Fargo’s encumbrances.   After Wells Fargo removed the
 7   Third Lawsuit to federal district court, Mr. Singh voluntarily
 8   dismissed it.
 9   C.   The chapter 13 bankruptcy case and adversary proceeding
10        Also in March 2015, Mr. Singh filed the underlying
11   chapter 13 bankruptcy case.   This was his tenth bankruptcy
12   filing.
13        Mr. Singh initiated an adversary proceeding against Wells
14   Fargo, alleging that the Unlawful Detainer Judgment conclusively
15   established that Wells Fargo had no right to record the Trustee’s
16   Deed following the July 2012 foreclosure sale and, therefore, had
17   no right to pursue further foreclosure actions.    He also alleged
18   that Wells Fargo did not properly rescind the Trustee’s Deed.
19   The amended adversary complaint asserted nine causes of action:
20   (1) injunctive relief, (2) declaratory relief, (3) turnover of
21   unlawfully conveyed real property, (4) slander of title,
22   (5) financial elder abuse fraud, (6) quiet title, (7) fraud,
23   malice, and oppression, (8) violation of business and professions
24   code section 17200, and (9) accounting.
25   D.   The motion to dismiss
26        Wells Fargo moved to dismiss the adversary proceeding under
27   Civil Rule 12(b)(6), made applicable to bankruptcy by Rule
28

                                      5
 1   7012(b) (“Motion to Dismiss”).2    It argued that the complaint
 2   failed to state a claim upon which relief could be granted
 3   because, among other things, Mr. Singh voluntarily dismissed
 4   similar claims twice before in the First and Third Lawsuits,
 5   which barred further adjudication under Civil Rule 41(a)(1)(B),
 6   made applicable in bankruptcy by Rule 7041; he failed to make a
 7   valid tender of the outstanding debt, thereby precluding
 8   equitable relief; the Unlawful Detainer Judgment did not preclude
 9   Wells Fargo from continuing its foreclosure efforts; and the
10   Notice of Rescission was proper.
11        In response, Mr. Singh argued that Wells Fargo “stole [his]
12   Property through a fraudulent sale” and filed “a Bogus Notice of
13   Rescission of Trustee’s Deed Upon Sale[.]”    He argued that claim
14   preclusion did not apply to the slander of title claim, which he
15   alleged for the first time in the adversary complaint.    In the
16   alternative, he asked that the bankruptcy court allow him leave
17   to amend the complaint.
18        At the hearing on the Motion to Dismiss, counsel for Wells
19   Fargo reminded the court that, in the time that the Motion to
20   Dismiss was pending, the Ninth Circuit affirmed the district
21   court’s dismissal of the Second Lawsuit; as a result, claim
22   preclusion barred relitigation of the claims raised in the Second
23   Lawsuit.   In response, Mr. Singh’s counsel argued briefly that
24   claim preclusion was inapplicable because “the matters that we’re
25
26        2
            The bankruptcy court dismissed the underlying bankruptcy
27   case in May 2016 but retained jurisdiction over the adversary
     proceeding. Mr. Singh later filed his eleventh bankruptcy
28   petition in April 2018.

                                        6
 1   raising in this case are matters that came about after [the
 2   Unlawful Detainer Judgment].”
 3        Following the hearing, the bankruptcy court issued its Order
 4   Granting Motion to Dismiss First Amended Complaint (“Dismissal
 5   Order”).
 6        First, the bankruptcy court held that claim preclusion
 7   applied to all of the causes of action except the quiet title
 8   claim, “because the Second Lawsuit was fully adjudicated
 9   adversely to the Plaintiff by both the District Court and the
10   United States Court of Appeals for the Ninth Circuit . . . and
11   contained claims based on the same underlying facts as alleged in
12   the [adversary complaint].”
13        Second, the bankruptcy court held that the “Two Dismissal
14   Rule” of Civil Rule 41(a)(1)(B) barred relitigation of the claims
15   previously asserted (and dismissed) in the First and Third
16   Lawsuits.
17        Third, the bankruptcy court held that Mr. Singh’s failure to
18   tender payment of the debt mandated dismissal of the equitable
19   claims - injunctive relief, declaratory relief, quiet title,
20   unfair competition, and accounting.
21        Finally, the bankruptcy court considered the merits of the
22   individual claims and determined that none stated a claim upon
23   which relief could be granted.    The bankruptcy court therefore
24   dismissed the adversary complaint with prejudice.
25        Mr. Singh timely appealed.
26                              JURISDICTION
27        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
28   §§ 1334 and 157(b)(1).   We have jurisdiction under 28 U.S.C.

                                       7
 1   § 158.
 2                                   ISSUE
 3        Whether the bankruptcy court erred in dismissing the
 4   complaint without leave to amend.
 5                           STANDARDS OF REVIEW
 6        We review de novo a bankruptcy court’s decision to grant a
 7   motion to dismiss a complaint under Civil Rule 12(b)(6).    See
 8   Barnes v. Belice (In re Belice), 461 B.R. 564, 572 (9th Cir. BAP
 9   2011).   De novo review is independent and gives no deference to
10   the trial court’s conclusion.   Roth v. Educ. Credit Mgmt. Agency
11   (In re Roth), 490 B.R. 908, 915 (9th Cir. BAP 2013).
12        A decision to dismiss a complaint without leave to amend and
13   with prejudice is reviewed for abuse of discretion.    See Tracht
14   Gut, LLC v. L.A. Cty. Treasurer & Tax Collector (In re Tracht
15   Gut, LLC), 836 F.3d 1146, 1150 (9th Cir. 2016).   To determine
16   whether the bankruptcy court has abused its discretion, we
17   conduct a two-step inquiry: (1) we review de novo whether the
18   bankruptcy court “identified the correct legal rule to apply to
19   the relief requested” and (2) if it did, whether the bankruptcy
20   court’s application of the legal standard was illogical,
21   implausible, or without support in inferences that may be drawn
22   from the facts in the record.   United States v. Hinkson, 585 F.3d
23   1247, 1262–63 & n.21 (9th Cir. 2009) (en banc).
24                               DISCUSSION
25   A.   Civil Rule 12(b)(6) requires Mr. Singh to state a claim upon
          which relief can be granted.
26
27        Under Civil Rule 12(b)(6), a court must dismiss a complaint
28   if it fails to state a claim upon which relief can be granted.

                                       8
 1   To survive a motion to dismiss, the plaintiff must allege “enough
 2   facts to state a claim to relief that is plausible on its face.”
 3   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).    A claim is
 4   facially plausible when the plaintiff pleads facts that “allow[ ]
 5   the court to draw the reasonable inference that the defendant is
 6   liable for the misconduct alleged.”    Ashcroft v. Iqbal, 556 U.S.
 7   662, 678 (2009) (citation omitted).    While courts do not require
 8   “heightened fact pleading of specifics,” a plaintiff must allege
 9   facts sufficient to “raise a right to relief above the
10   speculative level.”   Twombly, 550 U.S. at 555, 570.
11        In deciding whether the complaint states a claim upon which
12   relief can be granted, the court accepts the allegations as true
13   and draws all reasonable inferences in favor of the plaintiff.
14   See Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987).
15   But the court is not required to accept as true “allegations that
16   are merely conclusory, unwarranted deductions of fact, or
17   unreasonable inferences.”    In re Gilead Scis. Sec. Litig.,
18   536 F.3d 1049, 1055 (9th Cir. 2008).
19   B.   Mr. Singh’s basic argument – that the Unlawful Detainer
          Judgment destroyed Wells Fargo’s deed of trust – is wrong.
20
21        The crux of Mr. Singh’s arguments on appeal is that the
22   Unlawful Detainer Judgment stripped Wells Fargo of its rights in
23   the Property and precludes it from taking any further action to
24   foreclose on the Property.    He is mistaken.
25        Mr. Singh argues that Wells Fargo lacks the authority to
26   foreclose on the Property “because Wells Fargo lost the unlawful
27   detainer action[.]”   He also contends that the claims that rely
28   on the wrongful foreclosure claims (such as the elder abuse

                                       9
 1   claim, quiet title claim, and slander of title claim) should have
 2   survived the Motion to Dismiss for the same reason.
 3        But Mr. Singh’s position rests on a false premise: that the
 4   Unlawful Detainer Judgment extinguished Wells Fargo’s rights in
 5   the Property.    The jury’s finding that a procedural deficiency
 6   voided the July 2012 foreclosure sale does not mean that Wells
 7   Fargo is forever barred from conducting a proper foreclosure.
 8   Therefore, all of the claims that rely on his wrongful
 9   foreclosure argument necessarily fail.3
10        Similarly, Mr. Singh contends that the bankruptcy court
11   erred because the Unlawful Detainer Judgment should have been
12   given claim preclusive effect in his favor.    But the jury only
13   found that the July 2012 foreclosure sale was defective.    The
14   Unlawful Detainer Judgment does not provide, for example, that
15   Mr. Singh is entitled to a judgment quieting title in him free of
16   the deed of trust.    It has a more narrow effect than Mr. Singh
17   believes and does not support his claims in the adversary
18   proceeding.4    The Ninth Circuit was similarly unswayed by this
19   argument in deciding the appeal of the judgment in the Second
20
21        3
            Perhaps relatedly, Mr. Singh argues that Wells Fargo could
22   not foreclose because it violated the conditions precedent to a
     foreclosure under the deed of trust. It is not clear that he
23   made this argument in the bankruptcy court; if he did not, the
     argument is waived. But even if he did, he does not explain this
24   argument. He cites a lengthy paragraph purportedly from the deed
     of trust but does not state how Wells Fargo allegedly violated
25   it. We can discern no error based on this argument.
26        4
            In his reply   brief, Mr. Singh complains that Wells Fargo
27   refused to agree to   a loan modification. He offers no authority
     for the proposition   that Wells Fargo had any legal obligation to
28   modify the terms of   the loan.

                                      10
 1   Lawsuit, stating that it “reject[s] without merit . . . Singh’s
 2   contentions regarding . . . the preclusive effect of the parties’
 3   state unlawful detainer action.”     We are bound by the Ninth
 4   Circuit’s rejection of Mr. Singh’s preclusion arguments.
 5        In short, Wells Fargo’s errors in its first attempt to
 6   foreclose do not entitle Mr. Singh to a free house.
 7   C.   Mr. Singh fails to address the majority of the bankruptcy
          court’s Dismissal Order.
 8
 9        Mr. Singh utterly fails to address the bankruptcy court’s
10   major reasons for dismissing his complaint.     As such, those
11   arguments are waived.   See Padgett v. Wright, 587 F.3d 983, 986
12   n.2 (9th Cir. 2009) (per curiam) (an appellate court “will not
13   ordinarily consider matters on appeal that are not specifically
14   and distinctly raised and argued in appellant’s opening brief”);
15   Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n
16   appeal, arguments not raised by a party in its opening brief are
17   deemed waived.”); Greenwood v. Fed. Aviation Admin., 28 F.3d 971,
18   977 (9th Cir. 1994) (“We will not manufacture arguments for an
19   appellant, and a bare assertion does not preserve a claim
20   . . . .”).   While we liberally construe a pro se debtor’s
21   appellate brief, see Nordeen v. Bank of Am., N.A. (In re
22   Nordeen), 495 B.R. 468, 483 (9th Cir. BAP 2013), we will not
23   question the parts of the bankruptcy court’s decision that
24   Mr. Singh does not even discuss.
25        1.   Mr. Singh does not challenge the court’s ruling that
               claim preclusion barred relitigation of all claims
26             except for the quiet title claim.
27        Mr. Singh ignores the bankruptcy court’s first reason for
28

                                     11
 1   dismissal: that claim preclusion5 barred relitigation of the
 2   claims raised in the Second Lawsuit (other than the quiet title
 3   claim).
 4        Under California law, claim preclusion “prevents
 5   relitigation of the same cause of action in a second suit between
 6   the same parties or parties in privity with them.”   Mycogen Corp.
 7   v. Monsanto Co., 28 Cal. 4th 888, 896 (2002).   Claim preclusion
 8   requires that: (1) the second lawsuit must involve the same
 9   “cause of action” as the first lawsuit; (2) the first lawsuit
10   must have resulted in a final judgment on the merits; and (3) the
11   party to be precluded must have been a party, or in privity with
12   a party, to the first lawsuit.   See San Diego Police Officers’
13   Ass’n v. San Diego City Emps.’ Ret. Sys., 568 F.3d 725, 734 (9th
14   Cir. 2008).   Courts may inquire into fairness and public policy
15   before applying the doctrine of claim preclusion, but that
16   inquiry is not mandatory.   See Roberts v. Andrews Family
17   Revocable Tr. (In re Andrews), BAP No. EC-13-1385-JuTaKu, 2014 WL
18   2547808, at *8 (9th Cir. BAP June 5, 2014), aff’d, 668 F. App’x
19   757 (9th Cir. 2016) (citing Kopp v. Fair Political Practices
20   Comm’n, 11 Cal. 4th 607, 620–22 (1995)).
21        First, Wells Fargo established an identity of claims between
22   the adversary proceeding and the Second Lawsuit.   California
23   courts employ the “primary rights theory” to determine if two
24
25        5
            Although the parties use the term “res judicata,” we
26   employ the term “claim preclusion,” which has “supplanted the
     term ‘res judicata’ that was traditionally used in a
27   now-obsolete, non-generic sense . . . .” The Alary Corp. v. Sims
     (In re Associated Vintage Grp., Inc.), 283 B.R. 549, 555 (9th
28   Cir. BAP 2002).

                                      12
 1   actions constitute a single cause of action.   “[A] ‘cause of
 2   action’ under the primary rights theory considers the broader
 3   question of the injury or harm suffered.   ‘The most salient
 4   characteristic of a primary right is that it is indivisible: the
 5   violation of a single primary right gives rise to but a single
 6   cause of action.’”   Id. at *9 (quoting Mycogen Corp., 28 Cal. 4th
 7   at 904).   Therefore, “[i]f an action involves the same injury to
 8   the plaintiff and the same wrong by the defendant then the same
 9   primary right is at stake even if in the second suit, the
10   plaintiff pleads different theories of recovery, seeks different
11   forms of relief and/or adds new facts supporting recovery.”     Id.
12   (quoting Eichman v. Fotomat Corp., 147 Cal. App. 3d 1170, 1174
13   (1983)); see Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d
14   708, 714 (9th Cir. 2001) (“The central criterion in determining
15   whether there is an identity of claims between the first and
16   second adjudications is ‘whether the two suits arise out of the
17   same transactional nucleus of facts.’” (citations omitted)).
18        The bankruptcy court examined the claims adjudicated in the
19   Second Lawsuit and determined that they were identical to the
20   claims raised in the adversary proceeding, except for the quiet
21   title claim.   The only change between the Second Lawsuit and the
22   adversary complaint was the Unlawful Detainer Judgment;
23   therefore, “any cause of action that relies on facts surrounding
24   the UD Lawsuit and Judgment[] would not be barred by the doctrine
25   of claim preclusion because it does not rely on the same
26   operative nucleus of facts.”   We discern no error in the
27   bankruptcy court’s careful comparison of the various claims.
28        Second, there is no dispute that the Second Lawsuit resulted

                                     13
 1   in a final judgment on the merits.
 2        Third, Mr. Singh was the prosecuting party in both the
 3   Second Lawsuit and the adversary proceeding.
 4        Accordingly, the bankruptcy court correctly decided that all
 5   of the claims raised in the adversary proceeding (except for the
 6   quiet title claim) are barred by claim preclusion.
 7        2.   Mr. Singh does not challenge dismissal based on the
               two-dismissal rule.
 8
 9        Similarly, the bankruptcy court correctly dismissed the
10   slander of title claim, injunctive relief claim, fraud claim, and
11   elder abuse claim because Mr. Singh had voluntarily dismissed
12   those claims twice before.
13        Under Civil Rule 41(a)(1)(B), “if the plaintiff previously
14   dismissed any federal- or state-court action based on or
15   including the same claim, a notice of dismissal operates as an
16   adjudication on the merits.”     This “two-dismissal rule” provides
17   that “a voluntary dismissal of a second action operates as a
18   dismissal on the merits if the plaintiff has previously dismissed
19   an action involving the same claims.”    Commercial Space Mgmt. Co.
20   v. Boeing Co., 193 F.3d 1074, 1076 (9th Cir. 1999).
21        The bankruptcy court correctly held that the two-dismissal
22   rule barred those claims that Mr. Singh voluntarily dismissed in
23   the First and Third Lawsuits.6    Mr. Singh does not address this
24
25        6
            Although Mr. Singh gave different titles to the causes of
26   action in the First and Third Lawsuits, the bankruptcy court
     properly determined that the claims arose out of the “same
27   transactional nucleus of facts.” For example, Mr. Singh asserted
     claims in the Third Lawsuit for slander of title and fraud, which
28                                                      (continued...)

                                       14
 1   reason for dismissal on appeal or discuss how the bankruptcy
 2   court erred.
 3        3.   Mr. Singh fails to address many of the discrete reasons
               for dismissal.
 4
 5        Mr. Singh largely fails to argue that the bankruptcy court
 6   erred in analyzing the individual causes of action.   He
 7   completely ignores the court’s reasons for dismissing: (1) First
 8   Cause of Action: Injunctive Relief; (2) Second Cause of Action:
 9   Declaratory Relief; (3) Third Cause of Action: Turnover of
10   Property; (4) Seventh Cause of Action: Fraud; (5) Eighth Cause of
11   Action: Violation of Business and Professions Code 17200; and
12   (6) Ninth Cause of Action: Accounting.   Accordingly, he has
13   waived these issues on appeal.
14        4.   Mr. Singh did not explain how the bankruptcy court
               erred by denying leave to amend.
15
16        Mr. Singh also fails to discuss the bankruptcy court’s
17   decision to dismiss his complaint without leave to amend.
18        The Ninth Circuit instructs that we must “consider five
19   factors in assessing whether a district court abuses its
20   discretion in dismissing a complaint without leave to amend: ‘bad
21   faith, undue delay, prejudice to the opposing party, futility of
22   amendment, and whether the plaintiff has previously amended the
23   complaint.’”   Ecological Rights Found. v. Pac. Gas & Elec. Co.,
24   713 F.3d 502, 520 (9th Cir. 2013) (quoting United States v.
25
          6
26         (...continued)
     were not explicitly asserted in the First Lawsuit. Nevertheless,
27   the bankruptcy court found that “the causes of action which rely
     on the facts surrounding the wrongful foreclosure . . . can be
28   dismissed pursuant to the Two Dismissal Rule.”

                                      15
 1   Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011)).   “Although
 2   leave to amend should be given freely, a district court may
 3   dismiss without leave where a plaintiff’s proposed amendments
 4   would fail to cure the pleading deficiencies and amendment would
 5   be futile.”   Cervantes v. Countrywide Home Loans, Inc., 656 F.3d
 6   1034, 1041 (9th Cir. 2011); see Civil Rule 15(a) (“The court
 7   should freely give leave when justice so requires.”).
 8        The bankruptcy court determined that leave to amend would be
 9   futile because Mr. Singh could not plead any viable claim.    We
10   agree.   As the bankruptcy court comprehensively explained, each
11   of Mr. Singh’s claims failed as a matter of law for multiple
12   reasons, and Mr. Singh did not propose any way in which he could
13   amend his complaint to avoid the many hurdles.
14        In his briefs, Mr. Singh only states that “[t]he trial court
15   erred in in [sic] dismissing the Adversary complaint without
16   leave to amend.”   He also baldly states that the complaint “can
17   reasonably be amended to allege standing and to plead with
18   sufficient particularity on each of SINGH’s claims[,]” but he
19   does not explain how he would amend the complaint to cure the
20   defects.
21        We do not consider arguments that are not specifically and
22   distinctly argued in the appellant’s opening brief.    See Padgett,
23   587 F.3d at 986 n.2; Bolt v. Crake (In re Riverside-Linden Inv.
24   Co.), 945 F.2d 320, 325 (9th Cir. 1991) (holding that a passing,
25   conclusory statement “did not permit the issue to be ‘fully
26   explored,’ . . . and we consider the issue waived”).    Mr. Singh
27   provides no analysis, legal authority, or facts supporting his
28   assertion that he should be entitled to amend his complaint.

                                     16
 1        At oral argument, counsel for Mr. Singh argued that the
 2   bankruptcy court should have allowed Mr. Singh to amend his
 3   complaint to allege that Wells Fargo had to start the foreclosure
 4   process anew, presumably because the Unlawful Detainer Judgment
 5   voided all earlier actions to foreclose on the Property.   But
 6   Mr. Singh did not articulate this theory to the bankruptcy court
 7   or in his briefs, so we will not consider it.   See Ezra v. Seror
 8   (In re Ezra), 537 B.R. 924, 932 (9th Cir. BAP 2015).7
 9        Accordingly, the bankruptcy court did not abuse its
10   discretion in granting the Motion to Dismiss with prejudice.
11
          7
12          Further, there is no reason to allow Mr. Singh to file an
     amended complaint based on his fear that Wells Fargo might err
13   again. As far as we can tell from the record, Mr. Singh’s serial
     bankruptcy filings have so far prevented Wells Fargo from
14   foreclosing again. If Wells Fargo manages to get a new
15   foreclosure off the ground, Mr. Singh could assert any proper
     challenges to that foreclosure at an appropriate time and in an
16   appropriate forum. Any wrongs committed in that new foreclosure
     would not have any bearing on the bankruptcy case in which this
17   adversary proceeding was brought (Mr. Singh’s tenth bankruptcy
     case) because that bankruptcy case has been dismissed. Any
18   claims arising out of the new foreclosure would be based on
19   conduct occurring after that bankruptcy case was dismissed, and
     those claims would not be property of the estate in the dismissed
20   bankruptcy case. Because the claims arising out of the new
     foreclosure would not affect the outcome of Mr. Singh’s tenth
21   bankruptcy case or the administration of his estate, the
     bankruptcy court likely would not have “related to” subject
22
     matter jurisdiction. Cf. Montana v. Goldin (In re Pegasus Gold
23   Corp.), 394 F.3d 1189, 1193 (9th Cir. 2005) (stating that the
     “related to” test examines whether “the outcome of the proceeding
24   could conceivably have any effect on the estate being
     administered in bankruptcy”); Linkway Inv. Co. v. Olsen (In re
25   Casamont Inv’rs, Ltd.), 196 B.R. 517, 521 (9th Cir. BAP 1996)
26   (“An action is ‘related to’ a bankruptcy case if the outcome of
     the proceeding could conceivably alter the debtor’s rights,
27   liabilities, options or freedom of action (either positively or
     negatively) in such a way as to impact on the administration of
28   the bankruptcy estate.”).

                                    17
 1   D.   Mr. Singh fails to allege any actual injury.
 2        The bankruptcy court held that Mr. Singh did not properly
 3   allege any injury, which is fatal to many of his claims.
 4   Mr. Singh argues on appeal that he was damaged in an unspecified
 5   amount to be determined at trial.    The court did not err.
 6        As a general rule, a plaintiff must allege damages suffered
 7   due to the allegedly improper foreclosure.    See generally
 8   Cervantes, 656 F.3d at 1044 (holding that plaintiffs failed to
 9   state a claim where they “have not identified damages”); Simmons
10   v. Aurora Bank FSB, No. 13-cv-00482-HRL, 2016 WL 192571, at *7
11   (N.D. Cal. Jan. 15, 2016) (stating that, to state a claim for
12   wrongful foreclosure, a plaintiff must allege that “she was
13   prejudiced or harmed”).   In this case, Mr. Singh alleges that he
14   suffered prejudice because “he lost his home at a foreclosure
15   sale,” which “shows prejudice” in and of itself and would
16   naturally cause anyone “emotional suffering.”    But aside from
17   these vague statements, he still fails to allege how and to what
18   extent he has been actually harmed.    He also argued to the
19   bankruptcy court that the property taxes on the Property had
20   increased; but it is undisputed that he has not paid taxes since
21   he defaulted on the mortgage loan.
22        Mr. Singh fails to articulate any actual injury or explain
23   how he would cure this defect if he were allowed to amend his
24   complaint.   The bankruptcy court did not err in determining that
25   he did not allege actual injury.
26   E.   We will not consider new arguments raised for the first time
          on appeal.
27
28        Mr. Singh raises a number of new arguments on appeal that he

                                     18
 1   did not present to the bankruptcy court.   For example, he makes
 2   references to Wells Fargo’s alleged violations of the Equal
 3   Credit Opportunity Act and the California Homeowners’ Bill of
 4   Rights.   He also raises new factual arguments, detailing Wells
 5   Fargo’s alleged misapplication or miscalculation of his mortgage
 6   payments, the “contrived” default, invalid assignment, and
 7   improper securitization.
 8        We will not consider these new arguments in the first
 9   instance.   We have stated that, “[o]rdinarily, federal appellate
10   courts will not consider issues not properly raised in the trial
11   courts. . . .   An issue only is ‘properly raised’ if it is raised
12   sufficiently to permit the trial court to rule upon it.”   In re
13   Ezra, 537 B.R. at 932 (citations omitted); see Moldo v. Matsco,
14   Inc. (In re Cybernetic Servs., Inc.), 252 F.3d 1039, 1045 n.3
15   (9th Cir. 2001) (stating that the appellate court would not
16   explore ramifications of argument because it was not raised in
17   the bankruptcy court); Levesque v. Shapiro (In re Levesque),
18   473 B.R. 331, 335 (9th Cir. BAP 2012) (“Ordinarily, if an issue
19   is not raised before the trial court, it will not be considered
20   on appeal and will be deemed waived.”).
21        Accordingly, Mr. Singh has waived these arguments.8
22
          8
23          We have discretion to “consider an issue raised for the
     first time on appeal if (1) there are exceptional circumstances
24   why the issue was not raised in the trial court, (2) the new
     issue arises while the appeal is pending because of a change in
25   the law, or (3) the issue presented is purely one of law and the
26   opposing party will suffer no prejudice as a result of the
     failure to raise the issue in the trial court.” In re Ezra,
27   537 B.R. at 932-33 (quoting Franchise Tax Bd. v. Roberts (In re
     Roberts), 175 B.R. 339, 345 (9th Cir. BAP 1994)). Mr. Singh has
28                                                      (continued...)

                                     19
 1                              CONCLUSION
 2        The bankruptcy court did not err when it dismissed
 3   Mr. Singh’s adversary complaint with prejudice.   We AFFIRM.9
 4
 5
 6
 7
 8
 9
10
11
12
13
14
15
16
17
18
19
20
21
22        8
           (...continued)
23   not identified any exceptional circumstances excusing his failure
     to raise any of these issues below. He also does not identify
24   any change in law, assert that the issue is purely one of law, or
     discuss prejudice Wells Fargo may face.
25
          9
26          As an additional justification for the dismissal of
     Mr. Singh’s claims for equitable relief, the bankruptcy court
27   held that he failed to tender payment of the debt. We do not
     reach this issue because we are affirming the decision on several
28   other, independently sufficient grounds.

                                    20
