                                                                              FILED
                           NOT FOR PUBLICATION                                APR 04 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARTHA RODRIGUEZ, a single                       No. 10-17178
woman,
                                                 D.C. No. 2:09-cv-01853-FJM
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

QUALITY LOAN SERVICE
CORPORATION, a California corporation
licensed to do business in the State of
Arizona; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Frederick J. Martone, District Judge, Presiding

                            Submitted March 12, 2012**
                             San Francisco, California

Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Martha Rodriguez appeals the district court’s dismissal of her claims against

Wells Fargo, Midland Mortgage, and MidFirst Bank. Rodriguez fell behind on her

mortgage payments and faced foreclosure. She alleges that she contracted with

Wells Fargo for a “reverse mortgage” on her home, with sufficient proceeds to be

paid to Midland to cure the default on her home loan. Wells Fargo did not approve

and fund the loan before Midland foreclosed on and sold the house at a Trustee’s

Sale. Rodriguez was then evicted.

      The district court had jurisdiction under 28 U.S.C. § 1332. This court has

jurisdiction under 28 U.S.C. § 1291.

      We review the district court’s dismissal of Rodriguez’s claims de novo.

Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011) (stating that a

motion to dismiss for failure to state a claim is “functionally identical” to a motion

to dismiss on the pleadings) (quoting Dworkin v. Hustler Magazine, Inc., 867 F.2d

1188, 1192 (9th Cir. 1982)) .

      Rodriguez claims that Midland lacked appropriate authority to conduct the

Trustee’s Sale of her home because it was not the holder of the underlying note

secured by the deed of trust. We affirm the district court’s dismissal of this claim.

The Arizona Supreme Court has held that A.R.S. § 33-308, a provision of the

state’s non-judicial foreclosure statute, was meant to protect the holder of the


                                          2
assignment against subsequent purchasers without notice; the statute “does not

affect a deed’s validity as to the obligor.” In re Vasquez, 266 P.3d 1053, 1055

(Ariz. 2011). Since Rodriguez executed a deed of trust and promissory note to

obtain a mortgage loan for her home, the question whether Midland or MidFirst

was in fact the beneficiary of the deed of trust at the time of sale is irrelevant to her

interests. If the foreclosing party is not the beneficiary, the party with a claim is

the actual beneficiary of the deed of trust, not Rodriguez, the obligor on the loan.

      Rodriguez argues that the district court improperly cut off discovery,

allowing her insufficient time to develop her case. But the district court dismissed

all of Rodriguez’s claims either for failure to state a claim or on the pleadings.

Because the case did not progress past the dismissal stage, Rodriguez’s claims

regarding discovery are moot. Because the discovery claims are moot, we need not

address the request for further time for discovery.

      Rodriguez argues that Wells Fargo induced her reasonable, foreseeable, and

detrimental reliance upon its promises regarding the “reverse mortgage” home

loan. The district court assumed that Wells Fargo did make a promise to

Rodriguez regarding the loan, found that Rodriguez’s reliance on it was not

reasonable, and dismissed her claim. According to Rodriguez’s pleadings, Wells

Fargo promised her that she qualified for a loan. Rodriguez did not allege that


                                            3
Wells Fargo promised her that it would approve or fund her loan. Because Wells

Fargo’s promise concerned only future conduct, Rodriguez did not have the legal

right to rely on it, and the district court correctly dismissed her promissory estoppel

claim against Wells Fargo. See Renteria v. United States, 452 F. Supp. 2d 910,

915-16 (D. Ariz. 2006).

      Rodriguez claims that Wells Fargo negligently misrepresented to her the fact

that its services would stop or prevent the Trustee’s Sale of her home; she petitions

for special, general, emotional, and punitive damages in recompense. We affirm

the district court’s dismissal of this claim. Rodriguez failed to allege that Wells

Fargo misrepresented or omitted a material fact as is required to make a claim of

negligent misrepresentation in Arizona. See McAlister v. Citibank, 829 P.2d 1253,

1261 (Ariz. Ct. App. 1992). We conclude that the district court was correct in

finding that Wells Fargo’s representations related solely to future conduct and that

Rodriguez cannot sustain a claim of negligent misrepresentation.

      AFFIRMED.




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