                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 13 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



BRUCE HADLEY; STEPHANIE Y.                       No. 08-56521
HADLEY,
                                                 D.C. No. 2:08-cv-02674-R-CT
               Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

BNC MORTGAGE, INC.,

               Defendant,

  and

LEHMAN BROTHERS ASSET
SECURITIES CORPORATION; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                            Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

          *
             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).
       Bruce and Stephanie Y. Hadley appeal pro se from the district court’s

judgment dismissing their action arising out of foreclosure proceedings.1 We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. King v. California, 784

F.2d 910, 912 (9th Cir. 1986). We may affirm on any ground supported by the

record. Charley’s Taxi Radio Dispatch Corp. v. SIDA of Haw., Inc., 810 F.2d 869,

874 (9th Cir. 1987). We affirm.

      The Hadleys’ claim for rescission under the Truth in Lending Act (“TILA”)

was properly dismissed because the loan at issue was a “residential mortgage

transaction” and therefore could not be rescinded under TILA. 15 U.S.C.

§ 1635(e)(1) (the right of rescission does not apply to a “residential mortgage

transaction”); see also id. § 1602(w) (defining a “residential mortgage

transaction”).

      The district court properly dismissed the Hadleys’ claim to set aside the

trustee’s sale because the Hadleys failed to allege tender or facts showing that they

were prejudiced by the alleged procedural defects. See Arnolds Mgmt. Corp. v.

Eischen, 205 Cal. Rptr. 15, 17 (Ct. App. 1984) (“[A]n action to set aside a trustee’s

sale for irregularities in sale notice or procedure should be accompanied by an



        1
         This court has stayed the appeal as to BNC Mortgage, Inc., pursuant to 11
U.S.C. § 362, and remains open as to it.

                                          2                                       08-56521
offer to pay the full amount of the debt for which the property was security.”); see

also Knapp v. Doherty, 20 Cal. Rptr. 3d 1, 8 n.4 (Ct. App. 2004) (to attack a

nonjudicial foreclosure sale, a plaintiff must plead and prove “an improper

procedure and the resulting prejudice” (citation and internal quotation marks

omitted)).

      The district court properly dismissed the Hadleys’ fraud claim because the

Hadleys failed to allege fraud with the specificity required by Fed. R. Civ. P. 9(b).

See Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1400-01

(9th Cir. 1986) (describing the specificity required of fraud claims).

      The district court did not abuse its discretion by dismissing without leave to

amend where amendment would be futile. See Gordon v. City of Oakland, 627

F.3d 1092, 1094 (9th Cir. 2010).

      The Hadleys’ remaining contentions are unpersuasive.

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

in the opening brief, nor arguments and allegations raised for the first time on

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

      AFFIRMED.




                                           3                                    08-56521
