                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             JUN 19 2014

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

DANIELA ECKERLE; RICHARD D.                     No. 11-18068
ECKERLE,
                                                D.C. No. 1:10-cv-00474-SOM-
              Plaintiffs - Appellants,          BMK

  v.

DEUTSCHE BANK NATIONAL TRUST,                   MEMORANDUM*
as Trustee for Securitization Corp. HSI
Asset; HOMEWARD RESIDENTIAL,
INC.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Hawaii
                Susan Oki Mollway, Chief District Judge, Presiding

                             Submitted June 11, 2014**
                                Honolulu, Hawaii

Before: W. FLETCHER, IKUTA, and HURWITZ, 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).
      Richard and Daniela Eckerle appeal the summary judgment entered by the

district court in favor of Deutsche Bank National Trust Company and American Home

Mortgage Servicing, Inc., now known as Homeward Residential, Inc. (“AHMSI”).

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

1.    Plaintiffs argue that the district court erred in granting summary judgment

because it was required to treat “the allegations in the complaint . . . as being true.”

To the contrary, when considering a summary judgment motion, the court must

determine whether the non-moving party has demonstrated a “genuine dispute as to

any material fact” warranting trial. Fed. R. Civ. P. 56(a).

      The Eckerles did not do so here. Richard Eckerle’s affidavit stated: “I believe

that there was a loan modification agreement in place” and “I am under the impression

that a further loan modification is under review and still possible.” Eckerle’s

speculation does not establish a material factual dispute as to the existence of a

modification agreement. Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir.

1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes

of summary judgment.”)

      The district court correctly held that the documents plaintiffs cite as evidence

of a binding loan modification are insufficient to satisfy the Hawaii statute of frauds.

See Haw. Rev. Stat. § 656-1(4). The documents, at most, establish that the Eckerles


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might be eligible to apply for a loan modification. For example, a letter from AHMSI

states: “We are writing you to let you know that you may be eligible for certain

programs that could be used to avoid a foreclosure . . . .”

      The plaintiffs also argue the “transfer of title was void because Eckerle had

never been personally served with notice of the sale, and because of a break in the

chain of title.” But none of those allegations are in their amended complaint. Because

the plaintiffs presented no evidence below of the existence of a contract, any alleged

deficiencies in the chain of title would not save the breach of contract claim they

actually asserted.

2.    The district court did not abuse its discretion in denying the Eckerles’ motion

for reconsideration. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 883,

891 (9th Cir. 2000) (noting abuse of discretion standard). Such a motion “may not be

used to . . . present evidence for the first time when [it] could reasonably have been

raised earlier in the litigation.” Id. at 890 (citation omitted). Two of the documents

submitted with the motion for reconsideration were dated before the filing of the

opposition to the motion for summary judgment. The movants never explained why

the remaining document, a report apparently generated on their behalf, was not

prepared earlier.

3.    The notice of appeal was filed on December 27, 2011 and the district court


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ruled on the attorneys’ fee request on March 14, 2012. The Eckerles, however, never

amended the notice of appeal. This court therefore lacks jurisdiction to consider an

appeal of the fee award. Culinary & Serv. Emps. Union Local 555 v. Hawaii Emp.

Benefit Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982).

      AFFIRMED.




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