                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 17 2013

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




                             FOR THE NINTH CIRCUIT



FIDEL H. PAJARILLO,                               No. 10-17273

               Plaintiff - Appellant,             D.C. No. 2:09-cv-00078-LDG-
                                                  GWF
  v.

COUNTRYWIDE HOME LOANS, INC.;                     MEMORANDUM *
et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Lloyd D. George, District Judge, Presiding

                            Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       Fidel H. Pajarillo appeals pro se from the district court’s order dismissing

his action arising out of foreclosure proceedings. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a district court’s dismissal. King v. California,


          *
             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).
784 F.2d 910, 912 (9th Cir. 1986). We affirm in part, and vacate in part, and

remand.

      The district court properly dismissed Pajarillo’s state law claims based on

his mortgage being securitized because the claims lacked any legal basis given the

fact that Pajarillo had contractually acknowledged that the interest of the

originating lender in the loan could be transferred. Cf. Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1039 (9th Cir. 2011) (noting that “[i]t has

become common for original lenders to bundle the beneficial interest in individual

loans and sell them to investors as mortgage-backed securities, which may

themselves be traded”).

      The district court dismissed Pajarillo’s wrongful foreclosure claim based on

defendant Mortgage Electronic Registration Systems, Inc.’s (“MERS”) initiating

non-judicial foreclosure proceedings. After the district court’s dismissal order, the

Nevada Supreme Court decided Edelstein v. Bank of N.Y. Mellon, 286 P.3d 249

(Nev. 2012). Although the foreclosure statute discussed in Edelstein differs from

the one at issue here, the Nevada Supreme Court discussed the effects of MERS’s

designation as the beneficiary on the deed of trust. See id. at 252 (“We conclude

that when MERS is the named beneficiary and a different entity holds the

promissory note, the note and the deed of trust are split, making nonjudicial


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foreclosure by either improper.”); see also Cervantes, 656 F.3d at 1044 (9th Cir.

2011) (noting that “[t]he legality of MERS’s role as a beneficiary may be at issue

where MERS initiates foreclosure in its own name”). Since the district court did

not have the benefit of Edelstein when it issued its order of dismissal, we remand

to allow the court to reconsider Pajarillo’s wrongful foreclosure claim in light of

that opinion.

      Pajarillo’s contentions that the district court should have abstained from

exercising jurisdiction over the case and that it applied the wrong pleading

standard are unpersuasive.

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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