                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 29 2016

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



                             FOR THE NINTH CIRCUIT


GARY W. LIAL; MARQULINN LIAL,                     No. 12-16855

               Plaintiffs - Appellants,           D.C. No. 2:10-cv-02121-GMN-
                                                  PAL
 v.

BANK OF AMERICA CORPORATION;                      MEMORANDUM*
et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Gloria M. Navarro, Chief Judge, Presiding

                            Submitted January 20, 2016**

Before:        CANBY, TASHIMA, and NGUYEN, Circuit Judges.

      Gary W. and Marqulinn Lial appeal pro se from the district court’s judgment

dismissing their diversity action alleging state law claims related to a foreclosure.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s


          *
             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).
dismissal under Federal Rule of Civil Procedure 12(b)(6). Cervantes v.

Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We affirm.

      The district court properly dismissed the Lials’ wrongful foreclosure and

quiet title claims because the Lials did not allege facts sufficient to show that they

were not in default on their loans and that defendants exercised the power of sale.

See Breliant v. Preferred Equities Corp., 918 P.2d 314, 318 (Nev. 1996) (per

curiam) (“In a quiet title action, the burden of proof rests with the plaintiff to prove

title in himself.”); Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623

(Nev. 1983) (wrongful foreclosure claim requires allegations that a lender

exercised the power of sale and foreclosed upon property when no failure of

performance existed on the part of the borrower).

      The district court properly dismissed the Lials’ civil conspiracy and

injunctive relief claims after dismissing the underlying causes of action. See, e.g.,

Eikelberger v. Tolotti, 611 P.2d 1086, 1088 (Nev. 1980) (conspiracy action for

damages generally must be based on a viable, independent cause of action).

      The Lials’ lack standing to enforce the terms of any pooling and service

agreement and therefore cannot challenge any assignment into a securitized trust.

See Wood v. Germann, 331 P.3d 859, 861-62 (Nev. 2014) (“[A]ppellant, who is

neither a party nor an intended third-party beneficiary of the PSA, lacked standing


                                           2                                     12-16855
to challenge the assignment’s validity.”). We reject as without merit the Lials’

contention that the securitization of their loan rendered their note or deed of trust

fraudulent.

      Contrary to the Lials’ arguments under Nevada law, Mortgage Electronic

System, Inc. (“MERS”) was properly identified as a beneficiary in their deed of

trust and had the authority to assign its interest. See Edelstein v. Bank of N.Y.

Mellon, 286 P.3d 249, 260 (Nev. 2012) (“We . . . hold that MERS is capable of

being a valid beneficiary of a deed of trust, separate from its role as an agent

(nominee) for the lender . . . . MERS, as a valid beneficiary, may assign its

beneficial interest in the deed of trust to the holder of the note, at which time the

documents are reunified.”); see also Diaz v. Kubler Corp., 785 F.3d 1326, 1329

(9th Cir. 2015) (“When interpreting state law, we are bound to follow the decisions

of the state’s highest court . . . .” (internal quotation marks omitted)).

      We do not consider arguments raised for the first time on appeal. See

Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998).

      AFFIRMED.




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