                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 26 2015

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

LARKIN J. SIMMONS; SHEILA A.                     No. 13-15079
SIMMONS, husband and wife as
community property with the right of             DC No. 2:12 cv-1938 FJM
survivorship,

              Plaintiffs - Appellants,           MEMORANDUM*

  v.

CITIBANK, NA, as Trustee for the
Certificate Holders of Bear Stearns Alt-A
Trust 2006-4, Mortgage Pass-Through
Certificates, Series 2006-4; BAC HOME
LOANS SERVICING, LP; BANK OF
AMERICA, NA, a National Banking
Association; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., a Delaware corporation;
RECON TRUST COMPANY, N.A., a
National Association,

              Defendants - Appellees.


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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Argued and Submitted February 10, 2015
                             San Francisco California

Before:      THOMAS, Chief Judge, and TASHIMA and McKEOWN, Circuit
             Judges.

      Plaintiffs Larkin J. and Sheila A. Simmons (together “Simmons”) appeal the

district court’s order granting the motion to dismiss their complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6), filed by Defendants Citibank, N.A.,

Mortgage Electronic Registration System, Inc. (“MERS”), ReconTrust Company,

N.A., BAC Home Loans Servicing, L.P., and Bank of America N.A. (collectively,

“Defendants”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     Simmons contends that the note and deed of trust securing their home

were never properly assigned to Citibank, and that ReconTrust was not validly

substituted as the trustee. The documents attached to Simmons’ complaint directly

refute this contention. Accordingly, these arguments and the complaint fail to state

a claim for relief. See Zadrozny v. Bank of N.Y. Mellon, 720 F.3d 1163, 1167-68

(9th Cir. 2013) (rejecting a borrower’s assertion that the deed of trust was “never

properly assigned to Bank of New York” in light of the “express provision[] in the

deed of trust for selling the note and for appointing a successor trustee,” which is

virtually identical to the one here).



                                          2
       2.     Next, Simmons contends that neither Citibank nor ReconTrust has the

power to foreclose “unless and until Citibank . . . shows a valid assignment in

writing of both the Note and Deed of Trust by the original lender.” This assertion

is a variant of the argument that a trustee may not “foreclose on a deed of trust

without the beneficiary first having to show ownership of the note that the deed

secures.” Hogan v. Wash. Mut. Bank, N.A., 277 P.3d 781, 782 (Ariz. 2012). The

Arizona Supreme Court, however, has expressly rejected this argument. See id. at

783. Thus, under this argument, the complaint fails to state a claim for relief.

       3.     Simmons further contends that, under Arizona law, no party has the

power to initiate foreclosure because MERS “was never lawfully appointed as the

‘beneficiary’ under the Simmons’ Deed of Trust.” This argument is foreclosed by

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1044 (9th Cir. 2011).

See also Zadrozny, 720 F.3d at 1169 (noting that, in Cervantes, this Court held that

“under Arizona law, MERS may serve as a beneficiary in non-judicial

foreclosures”). Accordingly, this argument cannot rescue the complaint from

dismissal for failure to state a claim for relief.

       4.     Finally, Simmons contends that the decision below should be reversed

because the district court impermissibly “jettison[ed]” and “ignore[d] the entire

Arizona version of the Uniform Commercial Code [“UCC”] which sets for[th] the


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only procedure for non-judicially foreclosing a deed of trust securing a promissory

note in the state of Arizona.” Simmons, simply, is wrong. In fact, the Arizona

Supreme Court has expressly held exactly the opposite: that, because “[t]he UCC

does not govern liens on real property,” a trustee need not comply with the UCC

before commencing a non-judicial foreclosure. Hogan, 277 P.3d at 783; see also

Zadrozny, 720 F.3d at 1171 (“The Arizona Supreme Court has definitively rejected

the . . . argument that a trustee must comply with UCC provisions to pursue

foreclosure proceedings.”). This contention is meritless.

      5.     Simmons has raised other arguments, but these were not asserted in

the district court. Accordingly, these arguments are waived and need not be

addressed. See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 n.1 (9th Cir. 2002) (“In

general, a party who fails to raise an issue in the district court, cannot raise it on

appeal.”).

                                      • • ! • •

      The judgment of the district court is AFFIRMED.




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