                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 22 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SUSAN CROWDEN,                                  No. 12-35443

                Plaintiff-Appellant,            D.C. No. 3:11-cv-01083-HZ

 v.
                                                MEMORANDUM*
FEDERAL NATIONAL MORTGAGE
ASSOCIATION; et al.,

                Defendants-Appellees.

                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernandez, District Judge, Presiding

                           Submitted January 16, 2018**

Before:      REINHARDT, TROTT, and HURWITZ, Circuit Judges.

      Susan Crowden appeals pro se from the district court’s judgment dismissing

her diversity action arising out of foreclosure proceedings. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of

Civil Procedure 12(b)(6). Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2008). We vacate and remand.

      The district court dismissed Crowden’s action after finding, among other

things, that Mortgage Electronic Registration Systems, Inc. (“MERS”) was a valid

trust beneficiary under Oregon law. However, after the district court entered

judgment, the Oregon Supreme Court decided, in reviewing a deed of trust similar

to Crowden’s, that MERS cannot be a beneficiary of a deed of trust under the

Oregon Trust Deed Act, nor is MERS eligible to serve as the beneficiary simply by

being designated as such in the deed of trust. See Brandrup v. ReconTrust Co.,

N.A., 303 P.3d 301, 304, 309-12 (Or. 2013) (en banc). Because the district court

did not have the benefit of Brandrup when it entered its order of dismissal, we

vacate and remand for further proceedings in light of Brandrup.

      We reject as without merit Crowden’s contention that the district court erred

in taking judicial notice of documents related to the foreclosure.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); United

States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not

presented to the district court are not part of the record on appeal.”).

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.


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