                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             NOV 28 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PAMELA K. STATON,                                No. 14-35399

              Plaintiff-Appellant,               D.C. No. 6:10-cv-01306-PA

 v.
                                                 MEMORANDUM*
BANK OF AMERICA (BAC)
HOME LOANS SERVICING LP;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.;
RECONTRUST COMPANY, NA,
a subsidiary of BAC NA,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                       Argued and Submitted October 3, 2016
                                Portland, Oregon

Before: CLIFTON, MURGUIA, and NGUYEN, Circuit Judges.

      Plaintiff-Appellant Pamela Staton appeals from the district court’s judgment

dismissing her foreclosure related action for lack of subject matter jurisdiction and


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
failure to state a claim upon which relief can be granted. We review de novo a

dismissal for lack of subject matter jurisdiction, Harger v. Dep’t of Labor, 569

F.3d 898, 903 (9th Cir. 2009), and for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6), Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th

Cir. 2004). We affirm.

      Plaintiff’s claims arise out of a non-judicial foreclosure attempt that

Defendants have rescinded and have committed to abandoning. We affirm the

district court’s dismissal of these claims as moot. A federal court’s jurisdiction is

limited to actual cases or controversies. U.S. Const. art. III, § 2, cl. 1; Iron Arrow

Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983). If a claim “has lost its character as

a present, live controversy,” it is moot. Flint v. Dennison, 488 F.3d 816, 823 (9th

Cir. 2007). Federal courts lack jurisdiction “to give opinions upon moot questions

or abstract propositions, or to declare principles or rules of law which cannot affect

the matter in issue in the case before it.” Am. Rivers v. Nat’l Marine Fisheries

Serv., 126 F.3d 1118, 1123 (9th Cir. 1997) (internal quotation marks omitted).

Because the non-judicial foreclosure has been rescinded and Defendants have

certified to the court that they will not resurrect the process, any claim challenging

the non-judicial foreclosure process was properly dismissed as moot.




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      Dismissal of these claims based on mootness does not preclude Plaintiff

from bringing arguments related to her loan’s securitization in the context of a

judicial foreclosure, should Defendants choose to pursue one. The actual case or

controversy requirement is a limit on federal courts’ jurisdiction. See Iron Arrow,

464 U.S. at 70. A dismissal for lack of jurisdiction, which is not a judgment on the

merits, should be without prejudice so that a plaintiff may reassert her claims in a

competent court. Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th

Cir. 1999); Wages v. IRS, 915 F.2d 1230, 1234 (9th Cir. 1990).

      We affirm, however, the district court’s dismissal with prejudice of Staton’s

claim of an invalid encumbrance under Oregon Revised Statutes sections 205.450-

205.470. The statute defines an “encumbrance” as a “claim, lien, charge or liability

attached to and binding property.” Or. Rev. Stat. § 205.450 (1). Plaintiff claims

that several documents constitute invalid claims of encumbrance, including the

Deed of Trust, the assignment of the Deed of Trust, the appointment of a successor

trustee, the Notice of Default and Election to Sell, and the Affidavit of Compliance

with Oregon Senate Bill 628 (2009). Of these documents, only the Deed of Trust

constitutes an encumbrance, as it is the only document that binds the property; the

other documents did not impose a “claim, lien, charge or liability” independent of

the Deed of Trust itself. Or. Rev. Stat. § 205.450(1); Vukanovich v. Kine, 285 P.3d


                                          3
733, 737 (Or. Ct. App. 2012). Because the parties agree that the Deed of Trust is

valid, and the other filings do not themselves constitute encumbrances, Staton has

failed to state a claim for an invalid encumbrance under sections 205.450-205.470.

“A judgment dismissing an action for failure to state a claim is a judgment on the

merits,” United States v. Bechtel Corp., 648 F.2d 660, 663 (9th Cir. 1981), and

thus, may be dismissed with prejudice.

      Plaintiff also argues that the district court erred in denying her leave to

amend. The district court did not abuse its discretion in denying Plaintiff

an additional opportunity to amend her complaint because any further

amendment would have been futile. See Ascon Props., Inc. v. Mobil Oil Co.,

866 F.2d 1149, 1160 (9th Cir. 1989) (setting forth standard of review and

explaining that “[t]he district court’s discretion to deny leave to amend is

particularly broad where plaintiff has previously amended the complaint”);

see also Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000)

(a district court acts within its discretion to deny leave to amend when

amendment would be futile).

      AFFIRMED.




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