                                                                              FILED
                            NOT FOR PUBLICATION                                   JUL 11 2012

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



                            FOR THE NINTH CIRCUIT


MARIUSZ BUCHNA; JULITA                           No. 10-17651
BUCHNA,
                                                 D.C. No. 2:10-cv-00418-MHM
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

BANK OF AMERICA, NA; BANK OF
NEW YORK MELLON
CORPORATION; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS INCORPORATED,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Mary H. MURGUIA, District Judge, Presiding

                        Argued and Submitted June 15, 2012
                             San Francisco, California

Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.

       Mariusz and Julita Buchna appeal the district court’s dismissal of their

action against Bank of America, N.A., Mortgage Electronic Registration Systems


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Inc. (MERS), and Bank of New York Mellon Corporation. Because the parties are

familiar with the factual and procedural history of this case, we need not recount it

here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The Buchnas argue that the note and deed of trust were split, rendering the

non-judicial foreclosure provisions in the deed of trust unenforceable. That

argument fails to state a claim because it is based on nothing more than conclusory

speculation that the parties exercising power under the deed of trust are not the

note holder or agents of the note holder. See Fed. R. Civ. P. 8; Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007); Cervantes v. Countrywide Home Loans, Inc.,

656 F.3d 1034, 1044 (9th Cir. 2011). The Buchnas do not dispute that they are in

default under the deed of trust and have alleged no reason to dispute the trustee’s

right to foreclose. See Hogan v. Wash. Mut. Bank, N.A., 277 P.3d 781, 784 (Ariz.

2012) (en banc). The Buchnas’ argument that the beneficiary was required to

prove ownership of the note before instituting a non-judicial foreclosure

proceeding also fails to state a claim. Id. at 783–84.

      The Buchnas argue that defendants-appellees are not permitted to enforce

the power of sale provision in the deed of trust because they are not persons

entitled to enforce a negotiable instrument under § 47-3301 of Arizona’s Uniform

Commercial Code. That argument fails to state a claim because Arizona law does


                                          2
“not require compliance with the UCC before a trustee commences a non-judicial

foreclosure.” Id. at 783.

       The Buchnas’ argument based on their contention that MERS is not a valid

beneficiary also fails to state a claim. See Cervantes, 656 F.3d at 1044.

       We reject the remainder of the Buchnas’ arguments for the reasons stated by

the district court.

       The district court did not err in entering judgment against the Buchnas, and

therefore implicitly denying leave to amend their complaint, because amendment

would have been futile. See Gardner v. Martino, 563 F.3d 981, 990 (9th Cir.

2009).

AFFIRMED.




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