                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 15 2013

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



                            FOR THE NINTH CIRCUIT


CHARLES DONALD ROSE,                             No. 12-35020

              Plaintiff - Appellant,             D.C. No. 3:11-cv-00611-SI

  v.
                                                 MEMORANDUM*
JPMORGAN CHASE BANK, N.A.

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                           Submitted October 10, 2013**
                                Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

       Charles Rose appeals from the district court’s grant of JPMorgan Chase

Bank’s motion to dismiss. The district court ruled that Rose’s claims were barred

by res judicata. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


        *
             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).
                                          -2-

      Rose concedes on appeal that his adversary proceeding in bankruptcy court

“reached a final judgment on the merits, and . . . involved identical parties” as

those currently before us. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987

(9th Cir. 2005). The parties dispute only whether the adversary proceeding

“involved the same ‘claim.’” Id. We conclude that it did.

      Rose’s present claims arise out of the same transactional nucleus of facts as

those in his adversary proceeding. Id. (holding that the first res judicata criterion is

“whether the two suits arise out of the same transactional nucleus of facts”). The

factual allegations underlying his claims are based on whether and how Chase took

possession of the relevant promissory note and deed of trust. That Chase

foreclosed on the property after the adversary proceeding was initiated does not

change this fact. Moreover, this case seeks to relitigate whether Chase has the

right to foreclose on the property, an issue already resolved in the adversary

proceeding. Id. (holding that the second and third res judicata criteria are “whether

rights or interests established in the prior judgment would be destroyed or impaired

by prosecution of the second action [and] whether the two suits involve

infringement of the same right”); see also Int’l Union of Operating Eng’rs-Emp’rs

Constr. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426,
                                         -3-

1430 (9th Cir. 1993) (establishing a res judicata bar despite the presentation of

different evidence).

      AFFIRMED.
