                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ARDEN J. KIRKPATRICK, an individual;            No. 16-56062
BONNIE L. KIRKPATRICK, an individual,
                                                D.C. No. 8:16-cv-00074-CJC-KES
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

WELLS FARGO BANK, N.A.; DOES, 1-
10, inclusive,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                           Submitted October 23, 2017**

Before:      LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.

      Arden J. Kirkpatrick and Bonnie L. Kirkpatrick appeal from the district

court’s judgment dismissing their diversity action alleging claims based on Wells

Fargo Bank’s alleged failure to respond to the Kirkpatricks’ loan modification



      *
             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).
applications. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Martinez v. Wells Fargo Home Mortg., Inc., 598 F.3d 549, 553 (9th Cir. 2010).

We affirm.

      The district court properly dismissed the Kirkpatricks’ claim alleging a

violation of 12 C.F.R. § 1024.41(b)(2) because the Kirkpatricks’ applications at

issue were duplicative and did not fall within the scope of the regulations. See 12

C.F.R. § 1024.41(i) (“A servicer is only required to comply with the requirements

of this section for a single complete loss mitigation application for a borrower’s

mortgage loan account.”).

      The district court did not abuse its discretion by taking judicial notice of

recorded documents related to the foreclosure of their property. See Lee v. City of

Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (setting forth the standard of

review and noting that a court may rely on matters of public record that are not

subject to reasonable dispute).

      We do not consider the Kirkpatricks’ argument regarding whether there was

a material violation of Cal. Civ. Code § 2924.10 due to the accrual of fees and

penalties because these allegations are new on appeal and inconsistent with their

complaint. See Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502,

510-11 (9th Cir. 2013) (declining to consider a new argument that was not

consistent with the operative complaint and would effectively be an attempt to


                                          2                                     16-56062
amend the operative complaint on appeal); see also Padgett v. Wright, 587 F.3d

983, 985 n.2 (9th Cir. 2009) (noting that arguments and allegations raised for the

first time on appeal are not considered).

      AFFIRMED.




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