                                                            FILED
                                                             JAN 12 2012
 1                                                       SUSAN M SPRAUL, CLERK
                                                           U.S. BKCY. APP. PANEL
                                                           OF THE NINTH CIRCUIT
 2
 3                UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                          OF THE NINTH CIRCUIT
 5   In re:                        )       BAP No.    CC-11-1221-MkHPa
                                   )
 6   BRIAN W. DAVIES,              )       Bk. No.    6:10-bk-37900-SC
                                   )
 7                  Debtor.        )       Adv. No.   6:11-ap-01001-SC
                                   )
 8                                 )
     BRIAN W. DAVIES,              )
 9                                 )
                    Appellant,     )
10   v.                            )       MEMORANDUM*
                                   )
11   DEUTSCHE BANK NATIONAL TRUST )
     COMPANY, as Trustee of the    )
12   Residential Asset             )
     Securitization Trust 2007-A5 )
13   Mortgage Pass Through Series )
     2007-E, Under the Pooling and )
14   Servicing Agreement Dated     )
     March 1, 2007, Its Assigns    )
15   and/or Successors In Interest,)
                                   )
16                  Appellee.      )
                                   )
17
                           Argued and Submitted on
18               November 16, 2011, at Pasadena, California
19                        Filed - January 12, 2012
20             Appeal from the United States Bankruptcy Court
                   for the Central District of California
21
        Honorable Scott C. Clarkson, Bankruptcy Judge, Presiding**
22
23
24
          *
           This disposition is not appropriate for publication.
25   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
26   See 9th Cir. BAP Rule 8013-1.
27        **
           This case was reassigned from the Honorable Thomas B.
28   Donovan to the Honorable Scott C. Clarkson on February 2, 2011.

                                       1
 1   Appearances:    The Appellant argued pro se. Sarina Saluja of
                     Allen, Matkins, Leck, Gamble, Mallory & Natsis LLP
 2                   argued on behalf of Appellee Deutsche Bank
                     National Trust Company.
 3
 4   Before:   MARKELL, HOLLOWELL, and PAPPAS, Bankruptcy Judges.
 5
 6                                INTRODUCTION
 7        This appeal arises from an adversary proceeding in Brian W.
 8   Davies’ (“Davies”) Chapter 71 bankruptcy case.     The bankruptcy
 9   court granted Deutsche Bank National Trust Company’s (“Deutsche”)
10   motion for judgment on the pleadings and denied Davies’ motion
11   for judgment on the pleadings or alternatively for summary
12   adjudication and judgment.    For the reasons set forth below, we
13   AFFIRM.
14                                   FACTS
15        On November 16, 2006, Davies executed a promissory note (the
16   “Note”) in favor of Universal American Mortgage Company of
17   California (“Universal Mortgage”).      To secure his payment
18   obligations under the Note, Davies executed a deed of trust (the
19   “Deed of Trust”) against real property located in Indio,
20   California (the “Property”).    The Deed of Trust named Universal
21   Mortgage as lender and trustee,2 and Mortgage Electronic
22
23        1
           Unless specified otherwise, all “Chapter” and “Section”
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all
24
     “Rule” references are to the Federal Rules of Bankruptcy
25   Procedure, Rules 1001-9037, all “Civil Rule” references are to
     the Federal Rules of Civil Procedure, 1-86, and all “Evidence
26   Rule” references are to the Federal Rules of Evidence, Rules 101-
     1103.
27
          2
           NDEx West, LLC (“NDEx”)succeeded Universal Mortgage as
28
                                                        (continued...)

                                       2
 1   Registration Systems, Inc. (“MERS”) as beneficiary, acting solely
 2   as nominee for lender and lender’s successors and assigns.
 3        On August 31, 2010, Davies filed a Chapter 7 bankruptcy
 4   petition.
 5   1.   The Relief from Stay Proceedings
 6        a.     The First Lift Stay Motion
 7        OneWest Bank, FSB (“OneWest”) moved for relief from stay,
 8   under Sections 362(d)(1) and 362(d)(2), as to the Property on
 9   September 23, 2010 (the “First Lift Stay Motion”).
10        In support of its motion, OneWest attached the declaration
11   of Brian Burnett, an employee of OneWest and “one of the
12   custodians of the books, records and files of Movant that pertain
13   to loans and extensions of credit given to Debtor(s) concerning
14   the Property” (the “Burnett Declaration”).   The Burnett
15   Declaration listed outstanding principal at $441,349.36; accrued
16   interest at $53,222.85; late charges at $1,673.42; attorney’s
17   fees and other costs at $700.00; and advances (including property
18   taxes and insurance) at $17,141.96, for a total claim of
19   $514,087.59.   According to Burnett, since the time of the last
20   payment received, November 1, 2008, twenty-one prepetition
21   payments (totaling $50,203.44) and one postpetition payment
22   (totaling $2,390.64) had become due but remained unpaid.3
23
          2
24         (...continued)
     trustee on October 16, 2009. A “Notice of Default and Election
25   to Sell under Deed of Trust” was recorded on July 14, 2009. A
     “Notice of Trustee’s Sale,” with a sale set for September 1,
26   2010, was recorded on August 9, 2010.
27        3
           Davies later testified in subsequent proceedings that he
28                                                      (continued...)

                                       3
 1        In further support of its motion, OneWest attached a copy of
 2   the Deed of Trust and a copy of the Note.4   OneWest also included
 3   a copy of an assignment of the Deed of Trust.   The assignment,
 4   dated September 20, 2010, and signed by Brian Burnett on behalf
 5   of MERS, assigned the beneficial interest in the Deed of Trust to
 6   Deutsche, as Trustee of the Residential Asset Securitization
 7   Trust 2007-A5, Mortgage Pass-Through Certificates, Series 2007-E,
 8   under the Pooling and Servicing Agreement dated March 1, 2007
 9   (the “2010 Assignment”).5   In addition, OneWest attached a copy
10   of Davies’ schedule D to its motion, which listed Universal
11   Mortgage as a secured creditor.6
12
          3
           (...continued)
13   made one payment to OneWest in April 2009 and that he made a
14   subsequent payment, which OneWest returned to him. According to
     him, this was the last time he ever tendered a payment to any
15   entity with respect to the Property. Davies also testified that
     he had not placed any amounts related to unpaid mortgage payments
16   in a segregated account.
17        4
           The Note was endorsed three times. The first endorsement,
18   by Universal Mortgage to Opteum Financial Services, LLC (“Opteum
     Financial”) appears on a separate page not part of the original
19   Note. The second endorsement, by Opteum Financial to IndyMac
     Bank, F.S.B. (“IndyMac”) appears on the last page of the original
20   Note. The third endorsement is an endorsement in blank by
     IndyMac; it too appears on the last page of the original Note.
21
          5
22         The assignment proffered by OneWest was dated September 20,
     2010 (the “2010 Assignment”), after the August 31, 2010
23   commencement of Davies’ bankruptcy case. Another version of the
     assignment, included as an exhibit to Davies’ objection, is dated
24   August 10, 2009, and was recorded on August 20, 2009 (the “2009
     Assignment”). This discrepancy remains without explanation.
25
          6
26         Davies subsequently amended his bankruptcy schedules. The
     most recent amended version of schedule D did not include
27   Universal Mortgage as a secured creditor. Instead, Universal
     Mortgage appeared on Davies’ second amended schedule F, as an
28                                                      (continued...)

                                        4
 1           Davies objected to the First Lift Stay Motion on October 6,
 2   2010, challenging OneWest’s standing to move for relief from
 3   stay.
 4           b.   The Amended Lift Stay Motion
 5           On October 19, 2010, OneWest filed an amended motion for
 6   relief from stay (the “Amended Lift Stay Motion”).     The first
 7   page of the accompanying “Notice of Motion” named “OneWest, as
 8   servicing agent for Deutsche Bank,” and not simply “OneWest” as
 9   the movant.    All other pages of the Amended Lift Stay Motion
10   simply identified “OneWest” and not “OneWest, as servicing agent
11   for Deutsche Bank” as the movant.      Attached to the Amended Lift
12   Stay motion was the same Burnett Declaration that accompanied the
13   First Lift Stay Motion.    Other than this declaration, OneWest
14   attached no additional exhibits to this filing.
15           Davies filed an objection to the Amended Lift Stay Motion on
16   November 5, 2010, again challenging OneWest’s standing to move
17   for relief from stay.
18           c.   Denial of the Amended Lift Stay Motion
19           The bankruptcy court heard the Amended Lift Stay Motion on
20   November 18, 2010 and denied the motion, without prejudice, on
21   January 7, 2011.    In its order, the bankruptcy court determined
22   that OneWest, and OneWest, as agent for Deutsche, did not have
23   standing to move for relief from stay and that Burnett’s
24   Declaration lacked credibility, as he “signed [it] both as an
25   employee of Movant and as an agent for MERS.”     Bk. Dkt. No. 64.
26
27
             6
           (...continued)
28   unsecured nonpriority creditor with a disputed claim.

                                        5
 1   2.   The Adversary Proceeding
 2        a.    The Complaint
 3        On January 2, 2011, Davies initiated an adversary proceeding
 4   (the “Adversary Proceeding”)7 against Deutsche and various other
 5   parties (collectively, the “Defendants”).   The complaint (the
 6   “Complaint”)8 stated six causes of action and sought:
 7        (1)   declaratory relief as to the nature, extent, and
 8              validity of Deutsche’s interest in the Property,
 9              specifically, that the Deed of Trust giving rise to
10              Deutsche’s interest in the Property was null and void
11              and that the amount of Deutsche’s claim was $0.00;9
12        (2)   declaratory relief as to the status of Deutsche’s
13              claim, that is, that the Deed of Trust had no value, as
14              being null and void, and that, the amount of Deutsche’s
15              “unsecured” claim was $0.00 (collectively, the
16
17        7
           In connection with the Adversary Proceeding, the parties
18   submitted several requests for judicial notice. The bankruptcy
     court took judicial notice of all of the documents those requests
19   identified. Among these documents were copies of SEC filings
     (including the Pooling and Servicing Agreement) concerning the
20   Residential Asset Securitization Trust (“RAST”), copies of the
     Note, Deed of Trust, the 2009 Assignment, and documents produced
21
     in response to subpoenas issued in the Adversary Proceeding.
22        8
           In the Complaint, Davies alleged that “[t]he ‘Origination
23   Funds’ for the ‘Note’ came from another undisclosed source,” that
     the “indebtedness to this ‘Note’ remain[ed] uncertain.” Compl.
24   ¶ 24.
25        9
           As to this first declaratory relief claim, Davies alleged
26   “that he holds an interest in the Property free and clear of any
     interest of defendants, in that the lien evidenced by the ‘Deed
27   of Trust’ and its subsequent assignments has no value since it is
     wholly ‘unsecured’, and that accordingly, the ‘Deed of Trust’ is
28   ‘null and void.’” Compl. ¶ 82.

                                      6
 1              Declaratory Relief Claims”);10
 2        (3)   damages for an alleged violation of the noticing
 3              requirements set forth in Section 1641(g) of the Truth
 4              in Lending Act (“TILA”), 15 U.S.C. §§ 1601-1667f (the
 5              “TILA Claim”);
 6        (4)   damages for fraud in conveyance allegedly arising from
 7              the transactions involving the Deed of Trust (the
 8              “Fraud Claim”);
 9        (5)   damages for libel (the “Libel Claim”); and
10        (6)   quiet title as to the Property (the “Quiet Title
11              Claim”).11
12   Adv. Dkt. No. 1.
13        b.    The Bankruptcy Court Dismisses Davies’ Claims Without
                Leave to Amend
14
15        On April 5, 2011, Deutsche moved for judgment on the
16   pleadings (“Deutsche’s Motion for Judgment”), seeking dismissal
17   of Davies’ claims.      Davies also moved for judgment on the
18   pleadings, or alternatively, summary adjudication and judgment
19   (“Davies’ Motion for Judgment”) on April 5, 2011.
20        In his motion, Davies argued that issue preclusion and
21   judicial estoppel precluded Deutsche from relitigating the issue
22
23
          10
           In connection with the second declaratory relief claim,
24   Davies alleged that “the lien evidenced by the ‘Deed of Trust’
     has no value since it is wholly unsecured” and that “the ‘Deed of
25
     Trust’ and its subsequent assignments are null and void.” Compl.
26   ¶ 88.
          11
27         With respect to his Quiet Title Claim, Davies alleged that
     Defendants “claim[ed] an interest adverse to Plaintiff in the
28   above-described property.” Compl. ¶ 116.

                                         7
 1   of standing, as to which the bankruptcy court ruled when it
 2   denied OneWest relief from stay.       On that basis, Davies contended
 3   he was entitled to a declaration that Deutsche held no interest
 4   in the Property.   Moreover, Davies maintained that if his claims
 5   for declaratory relief and fraud “[we]re held to be accurate and
 6   Judgment [wa]s in Plaintiff’s favor this Claim [the Quiet Title
 7   Claim] would be deemed proven and Quiet Title would be the
 8   remedy.”   Davies’ Mot. for J. at 13.
 9        The bankruptcy court heard both motions on May 3, 2011.12
10   On May 10, 2011, the bankruptcy court granted Deutsche’s Motion
11   for Judgment and denied Davies’ Motion for Judgment.13
12              i.   The Declaratory Relief Claims
13        As to Davies’ Declaratory Relief Claims, the bankruptcy
14   court reasoned that “Plaintiff appear[ed] to predicate his
15   declaratory relief claims on his allegation that MERS’ Assignment
16   of the Deed of Trust to Defendant was a ‘legal nullity’ and that
17   Davies s[ought] a determination that the Deed of Trust is ‘null
18
19
          12
           Davies submitted an audio recording of the May 3, 2011
20   proceedings to this Panel. We decline to consider the contents
     of such audio recording, as it is not an official record of the
21   proceeding, and in any event, is irrelevant to our analysis and
22   resolution of this appeal.
          13
23         As for Davies’ request for summary adjudication, the
     bankruptcy court determined that the filing did not comply with
24   the Local Bankruptcy Rules for the Central District of
     California, specifically, Local Rules 7056-1(b) (requiring movant
25   to serve and file his notice of motion and motion at least
26   42 days before the hearing date) and 7056-1(b)(2) (requiring
     movant to include a statement of uncontroverted facts and
27   conclusions of law and proposed summary judgment). The
     bankruptcy court denied summary adjudication as to each claim on
28   that basis.

                                        8
 1   and void.’”   Memo. Op. re Deutsche’s Mot. for J. at 7.      On that
 2   basis, the bankruptcy court concluded that the Declaratory Relief
 3   Claims “address[ed] the same substantive concerns identified in
 4   the sixth claim for relief, the quiet title action.”       Id. at 7.
 5        The bankruptcy court thus dismissed the Declaratory Relief
 6   Claims without leave to amend, also rejecting Davies’ issue
 7   preclusion and judicial estoppel arguments, as the order denying
 8   OneWest relief from stay did “not contain any specific findings
 9   regarding Defendant Deutsche’s standing and ownership interests
10   . . . .”   Id.
11              ii.    The TILA Claim
12        The bankruptcy court next determined that Davies’ TILA Claim
13   was deficient based on his failure to allege that the claimed
14   noncompliance with TILA’s notice requirements caused him to incur
15   actual damages.    For that reason, the bankruptcy court dismissed
16   the TILA claim.    This dismissal originally included leave to
17   amend.   But at Davies’ request that such leave be waived, the
18   bankruptcy court denied leave to amend.
19              iii. The Fraud Claim
20        The bankruptcy court concluded that Davies’ Fraud Claim was
21   “indecipherable on its face.”       Id. at 8.   Because the bankruptcy
22   court could not “make out any cognizable legal theory which the
23   Plaintiff is asserting,” it dismissed the Fraud Claim without
24   leave to amend.    Id. at 8.
25              iv.    The Libel Claim
26        With respect to the Libel Claim, the bankruptcy court
27   determined that Davies “ha[d] not alleged any specific statements
28   made by Deutsche,” that “[t]he only allegation [wa]s with respect

                                          9
 1   to ‘conduct,’” and that Davies’ “failure to identify and state
 2   the substance of the statements” rendered the claim insufficient.
 3   Id. at 8.    On these grounds, the bankruptcy court dismissed
 4   Davies’ Libel Claim without leave to amend.
 5                v.   The Quiet Title Claim
 6        As to Davies’ last claim, the bankruptcy court determined
 7   that Davies did not allege “the date as of which determination is
 8   sought,” include “in his prayer a request to quiet title against
 9   adverse claims,” or “allege that he can tender the amount
10   borrowed.”    Id. at 10.   In addition, the bankruptcy court
11   concluded that:
12        The quiet title action merely attacks the foreclosure
          process and does not address a legitimate title dispute.
13        If foreclosure is successful, title will change, and the
          quiet title claim is an improper means to challenge
14        foreclosure. Nothing is available to . . . resurrect the
          . . . quiet title cause of action, which is subject to
15        dismissal.
16   Id. at 10 (citing Lopez v. Chase Home Fin., LLC, No. CV F 09-0449
17   LJO GSA, 2009 U.S. Dist. LEXIS 35206 (E.D. Cal. Apr. 9, 2009))
18   (internal quotations omitted).    For these reasons, the bankruptcy
19   court dismissed the Quiet Title Claim without leave to amend.
20   3.   The Appeal
21        On May 6, 2011, Davies timely appealed both the order
22   granting Deutsche’s Motion for Judgment and the order denying
23   Davies’ Motion for Judgment.14
24
25        14
           Though initially premature given that the bankruptcy court
26   did not enter the relevant orders until May 10, 2011, Davies
     filed a timely notice of appeal. See Rule 8002(a).
27        After filing his appeal, Davies requested that this Panel
     take judicial notice of various documents. His first and second
28                                                      (continued...)

                                       10
 1                              JURISDICTION
 2        The bankruptcy court had jurisdiction under 28 U.S.C.
 3   §§ 1334 and 157(b).   We have jurisdiction under 28 U.S.C.
 4   § 158(c)(1).
 5                                 ISSUES
 6        1.   Did the bankruptcy court err when it granted Deutsche’s
 7             Motion for Judgment and denied Davies’ Motion for
 8             Judgment?
 9        2.   Did the bankruptcy court err when it dismissed Davies’
10             claims without leave to amend?
11        3.   Did the bankruptcy court err when it determined that
12             the doctrines of issue preclusion and judicial estoppel
13             did not apply?
14
          14
15         (...continued)
     requests, filed on June 3, 2011 and July 21, 2011, concerned
16   documents filed in other bankruptcy cases. In his third request,
     filed on October 4, 2011, Davies offered a newly-discovered
17   argument based on a document entitled “Terra Lago Purchaser Grant
     Deed,” a version of which was submitted as an exhibit in the
18   Adversary Proceeding from which this appeal arose.
19        As an appellate court, we generally do not consider
     documents and arguments not presented in the first instance to
20   the bankruptcy court. See Kirschner v. Uniden Corp. of Am.,
     842 F.2d 1074, 1077-78 (9th Cir. 1988); Golden v. Chicago Title
21   Ins. Co. (In re Choo), 273 B.R. 608, 613 (9th Cir. BAP 2002).
     Accordingly, we denied all three requests without prejudice to
22
     Davies renewing his motions based on evidence that the content of
23   those requests were presented to the bankruptcy court in the
     proceedings leading up to the orders on appeal. See Oct. 6, 2011
24   Order Denying Requests for Judicial Notice.
          Since this case was argued, Davies has also filed a notice
25   of supplemental authorities. The cased cited, Vogan v. Wells
26   Fargo Bank, N.A., No. 2:11-CV-02098-JAM-KJN (E.D. Cal. Nov. 17,
     2011), is distinguishable on its facts and does not a play a role
27   in our resolution of this appeal. To the extent Davies wished us
     to take judicial notice of this unpublished decision, that
28   request is DENIED.

                                     11
 1                            STANDARDS OF REVIEW
 2         We review the bankruptcy court’s denial of a motion for
 3   judgment on the pleadings under Civil Rule 12(c) de novo.      See
 4   3550 Stevens Creek Ass’n v. Barclays Bank of Cal., 915 F.2d 1355,
 5   1357 (9th Cir. 1990).
 6         We review the bankruptcy court’s denial of leave to amend
 7   for abuse of discretion.   See, e.g., Alcazar v. Corp. of Catholic
 8   Archbishop of Seattle, 598 F.3d 668, 671 n.3 (9th Cir. 2010),
 9   vacated in part and aff’d in part, 627 F.3d 1288 (9th Cir. 2010);
10   Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).
11   The abuse of discretion test has two prongs: “first, whether the
12   court applied the correct legal standard; and second, whether the
13   factual findings supporting the legal analysis were clearly
14   erroneous.”   Veal v. Am. Home Mortg. Servicing (In re Veal),
15   450 B.R. 897, 915 (9th Cir. BAP 2011) (citing United States v.
16   Hinkson, 585 F.3d 1247, 1261-63 (9th Cir. 2009) (en banc)).
17         Where a bankruptcy court has failed to apply the correct
18   legal standard, “it has ‘necessarily abuse[d] its discretion.’”
19   Id. (citing Hinkson, 585 F.3d at 1261-63) (modifications in
20   original).    We review this first prong of the analysis de novo.
21   Id.   Where a bankruptcy court has applied the correct legal
22   standard, “the inquiry then moves to whether the factual findings
23   made were clearly erroneous.”    Id. (citing Hinkson, 585 F.3d at
24   1262).   A bankruptcy court’s findings are clearly erroneous if
25   they are “‘illogical, implausible, or without support in
26   inferences that may be drawn from the record.’”       Id. (citing
27   Hinkson, 585 F.3d at 1263).     See also Rule 8013.
28         Appellate courts should “review strictly a . . . court’s

                                       12
 1   exercise of discretion denying leave to amend.”   Albrecht v.
 2   Lund, 845 F.2d 193, 195 (9th Cir. 1988).   Even though the above-
 3   cited cases refer to the use of the abuse-of-discretion standard,
 4   the Ninth Circuit also has held that “‘[d]ismissal without leave
 5   to amend is improper, unless it is clear, upon de novo review,
 6   that the complaint could not be saved by any amendment.’”    Intri-
 7   Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1056 (9th
 8   Cir. 2007) (quoting Sparling v. Daou (In re Daou Sys.), 411 F.3d
 9   1006, 1013 (9th Cir. 2005)).
10        We review the bankruptcy court’s denial of a motion for
11   summary judgment de novo.   Boyajian v. New Falls Corp. (In re
12   Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009); Lopez v.
13   Emergency Serv. Restoration, Inc. (In re Lopez), 367 B.R. 99, 103
14   (9th Cir. BAP 2007).   Viewing the evidence in the light most
15   favorable to the non-moving party, we determine whether the
16   bankruptcy court correctly found that there are no genuine issues
17   of material fact and that the moving party is entitled to
18   judgment as a matter of law.   Jesinger v. Nev. Fed. Credit Union,
19   24 F.3d 1127, 1130 (9th Cir. 1994).
20        We review questions regarding the application of “res
21   judicata, including issue and claim preclusion, de novo, as mixed
22   questions of law and fact in which legal questions predominate.”
23   Khaligh v. Hadaegh (In re Khaligh), 338 B.R. 817, 823 (9th Cir.
24   BAP 2006), aff’d, 506 F.3d 956 (9th Cir. BAP 2007) (citing Robi
25   v. Five Platters, Inc., 838 F.2d 318, 321 (9th Cir. 1988); Alary
26   Corp. v. Sims (In re Associated Vintage Grp., Inc., 283 B.R. 549,
27   554 (9th Cir. BAP 2002)).   “Once it is determined that preclusion
28   doctrines are available to be applied, the actual decision to

                                     13
 1   apply them is left to the trial court’s discretion.”      Khaligh,
 2   338 B.R. at 823 (citing Robi, 838 F.2d at 321) (further citations
 3   omitted).
 4        We review a bankruptcy court’s application of judicial
 5   estoppel for abuse of discretion.       Cheng v. K&S Diversified
 6   Invs., Inc. (In re Cheng), 308 B.R. 448, 452 (9th Cir. BAP 2004)
 7   (citing Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782
 8   (9th Cir. 1999)).
 9                                DISCUSSION
10   A.   The Bankruptcy Court Properly Granted Deutsche’s Motion for
          Judgment and Properly Denied Davies’ Motion for Judgment15
11
12        The bankruptcy court evaluates motions for judgment on the
13   pleadings under Rule 7012(b), which incorporates Civil Rule
14   12(c).    Fed. R. Bankr. P. 7012(b) ("Rule 12(b)-(i) F.R.Civ.P.
15   applies in adversary proceedings.").      “Where a [motion under
16   Civil Rule] 12(c) is used to raise the defense of failure to
17   state a claim, the motion for judgment on the pleadings faces the
18   same test as a motion under [Civil Rule] 12(b)(6).”      McGlinchy v.
19   Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988).
20        Under Civil Rule 12(b)(6), a claim for relief may be
21   dismissed for “failure to state a claim upon which relief can be
22   granted.”   Civil Rule 12(b)(6).    To avoid dismissal, the facts,
23   when accepted as true, must “state a claim to relief that is
24   plausible on its face.”   Bell Atl. Corp. v. Twombly, 550 U.S.
25
          15
26         Davies’ failure to provide a statement of uncontroverted
     facts and conclusions of law, coupled with the deficiencies in
27   Davies’ Complaint and Davies’ failure to address any defenses
     asserted by Deutsche, convinces us that the bankruptcy court
28   properly denied summary adjudication as to all claims.

                                        14
 1   544, 570, 127 S. Ct. 1955, 1960 (2007).    If a party's complaint
 2   has “not nudged their claims across the line from conceivable to
 3   plausible, their complaint must be dismissed.”   Id.
 4        When evaluating a motion to dismiss, “[t]wo working
 5   principles” must be considered: “[f]irst, the tenet that a court
 6   must accept a complaint’s allegations as true is inapplicable to
 7   threadbare recitals of a cause of action’s elements when only
 8   ‘supported by mere conclusory statements’”; and “[s]econd,
 9   determining whether a complaint states a plausible claim is
10   context-specific requiring the court to draw on its experience
11   and common sense.”   Ashcroft v. Iqbal, 566 U.S. __, __, 129 S.
12   Ct. 1937, 1940 (2009) (citing Twombly, 550 U.S. at 555, 556)).
13        Where a complaint cannot be saved by any amendment,
14   dismissal without leave to amend is proper.   Intri-Plex Techs.,
15   Inc., 499 F.3d at 1056 (quoting In re Daou Sys., 411 F.3d at
16   1013).
17        1.    The Declaratory Relief Claims
18              a.   The Bankruptcy Court Properly Dismissed the
                     Declaratory Relief Claims
19
20        When an action for declaratory relief is duplicative of the
21   relief sought under another cause of action, dismissal of the
22   declaratory relief claim is proper.   Swartz v. KPMG LLP, 476 F.3d
23   756, 766 (9th Cir. 2007) (per curiam) (affirming the district
24   court’s dismissal of a request for a declaration as to
25   defendants’ liability for damages sought under other causes of
26   action).   See also Mangindin v. Wash. Mut. Bank, 637 F. Supp. 2d
27   700, 707-08 (N.D. Cal. 2009) (district court dismissed
28   declaratory relief action where, among the relief sought, was a

                                     15
 1   declaration that defendants’ security interest in the subject
 2   property was void, which relief plaintiffs sought under other
 3   causes of action).
 4        Here, the bankruptcy court dismissed Davies’ Declaratory
 5   Relief Claims because it determined that the relief requested
 6   under the Declaratory Relief Claims duplicated the relief request
 7   under the Quiet Title Claim.   We agree.
 8        Davies’ goal in bringing the Declaratory Relief claims was
 9   to obtain a determination that he owns the Property free and
10   clear of all other claims and interests.   The Declaratory Relief
11   Claims request the same relief and under California law this
12   duplicates the cause of action.    In Ephraim v. Metropolitan Trust
13   Co. of Cal., 28 Cal. 2d 824, 172 P.2d 501 (1946), for example,
14   the California Supreme Court stated:
15        a complaint which consists of two counts, one to quiet
          title to real property and the other, as incidental to
16        the first count, to have declared void an instrument
          under which particular defendants assert title states
17        only one cause of action. . . .   And where, as is true
          in the present pleading, the count to quiet title in
18        regard to particularly named defendants clearly shows
          that it is based upon the same facts which are pleaded
19        in the cause to remove a cloud, a general demurrer of
          those defendants should be sustained if the second
20        count reveals a defect in plaintiff's title or does not
          state a cause of action to remove a cloud.
21
22   Ephraim, 28 Cal. 2d at 833, 172 P.2d at 507 (citations omitted).
23   See also Dabney v. Philleo, 38 Cal. 2d 60, 68, 237 P.2d 648, 653
24   (1951) (when quiet title and declaratory relief action based upon
25   same facts, only one cause of action stated).
26        Here, Davies’ Declaratory Relief Claims are wholly
27   derivative of his quiet title claim; were he to quiet title in
28   the manner requested, it would be pointless to separately declare

                                       16
 1   that result.   Since Ephraim and Dabney require collapsing the two
 2   claims into one cause of action, the dismissal of the Declaratory
 3   Relief Claims reaches the sensible result that Davies should not
 4   be able to simultaneously seek to quiet title and a declaratory
 5   judgment as to that same title.16
 6        The Declaratory Relief Claims are functionally equivalent to
 7   the Quiet Title Claim in another respect.   We acknowledge that
 8   Davies presents his Declaratory Relief Claims as claims that
 9   typically arise in the bankruptcy context, i.e., a request for a
10   determination as to the validity and extent of a lien or the
11   status of a creditor’s claim.   However, Davies seeks a
12   declaration that the Deed of Trust is null and void and that, to
13   the extent Deutsche asserts an interest in the Property based on
14   that Deed of Trust or on a claim arising from that Deed of Trust,
15
          16
16         In those California cases in which declaratory relief has
     been allowed along with a quiet title action, there has been some
17   form of remedy requested in the declaratory relief action that
     could not be granted in a quiet title action alone. See, e.g.,
18   Ephraim, 28 Cal. 2d 824, 172 P.2d 501 (quiet title action joined
19   with declaratory relief action as to cancellation of instruments
     purporting to transfer property in trust); Marra v. Aetna Const.
20   Co., 15 Cal. 2d 375, 101 P.2d 490 (1940) (quiet title action as
     to ownership joined with declaratory relief action as to
21   enforceability of prior deed covenants that allegedly ran with
     the land).
22
          We also do not believe that California’s 1980 codification
23   of the quiet title action disturbs the precedential effect of
     Ephraim and Dabney and the other decisions cited. The 1980
24   codification essentially preserved the common law cause of
     action, and strengthened it by permitting the action to be in
25   rem, thus binding unknown parties as well as those that are
26   named. See, e.g., Cal. Civ. Proc. Code §§ 762.060-762.070
     (unknown defendants). This enlargement of the relief permitted
27   buttresses Ephraim’s and Dabney’s holdings, as the quiet title
     action is thus even more the single repository of the type of
28   relief provided.

                                     17
 1   it has no interest or claim.   In short, the Declaratory Relief
 2   Claims reduce to a challenge against any interest of, or claim
 3   by, Deutsche that arises from that Deed of Trust, which are the
 4   same claims and interests that are the subject of the Quiet Title
 5   Claim.
 6        Finally, Davies’ own allegations support our
 7   characterization of these claims.      Davies alleged “that he holds
 8   an interest in the Property free and clear of any interest of
 9   defendants, in that the lien evidenced by the ‘Deed of Trust’ and
10   its subsequent assignments has no value since it is wholly
11   ‘unsecured’, and that accordingly, the ‘Deed of Trust’ is ‘null
12   and void.’”   Compl. ¶ 82.   He also alleged that “the lien
13   evidenced by the ‘Deed of Trust’ has no value since it is wholly
14   unsecured” and that “the ‘Deed of Trust’ and its subsequent
15   assignments are null and void.”    Compl. ¶ 88.   He further alleged
16   that Defendants “claim[ed] an interest adverse to Plaintiff in
17   the above-described property” based on that “legal nullity.”
18   Compl. ¶¶ 79, 116.   These are allegations that would be at issue
19   in any quiet title action.
20        Davies himself seems to have conceded our point - that his
21   Declaratory Relief Claims are duplicative of his Quiet Title
22   Claim - in his Motion for Judgment, maintaining that if his
23   claims for declaratory relief and fraud “[we]re held to be
24   accurate and Judgment [wa]s in Plaintiff’s favor this Claim [the
25   Quiet Title Claim] would be deemed proven and Quiet Title would
26   be the remedy.”   Davies’ Mot. for J. at 13 (emphasis supplied).
27        Davies’ Declaratory Relief and Quiet Title Claims relate to
28   the same Property.   They involve the same interests.    Davies’

                                       18
 1   objective under each cause of action is the same – to quiet
 2   title.    To that end, an action to quiet title as governed by
 3   California law is the appropriate vehicle; an equivalent request
 4   for declaratory relief is not.    For these reasons, we conclude
 5   that the Declaratory Relief Claims are redundant of the relief
 6   sought under the Quiet Title Claim.     While Davies may have
 7   demonstrated some ingenuity in his attempt to use a claim for
 8   declaratory relief as an additional apparatus by which to obtain
 9   the same relief sought under another cause of action, the law
10   does not accommodate such ingenuity.    We therefore conclude that
11   the bankruptcy court properly dismissed Davies’ Declaratory
12   Relief Claims.
13                b.   The Bankruptcy Court did not Err When it Denied
                       Davies Leave to Amend the Declaratory Relief
14                     Claims
15        We do not see how any amendment could save the Declaratory
16   Relief Claims from being subsumed under the Quiet Title Claim.
17   As we have discussed above, the Declaratory Relief Claims are
18   neither independent nor distinct from the Quiet Title Claim.       We
19   therefore conclude that the bankruptcy court properly denied
20   leave to amend as to the Declaratory Relief Claims.
21        2.      The TILA Claim
22                a.   The Bankruptcy Court Properly Dismissed the TILA
                       Claim
23
24        TILA requires that “not later than 30 days after the date on
25   which a mortgage loan is sold or otherwise transferred or
26   assigned to a third party, the creditor that is the new owner or
27   assignee of the debt shall notify the borrower in writing of such
28   transfer.”    15 U.S.C. § 1641(g)(1).   The notice must include:

                                       19
 1           (A) the identity, address, telephone number of the new
             creditor;
 2           (B) the date of transfer;
             (C) how to reach an agent or party having authority to
 3           act on behalf of the new creditor;
             (D) the location of the place where transfer of ownership
 4           of the debt is recorded; and
             (E) any other relevant information regarding the new
 5           creditor.
 6   Id.     Actions under TILA “may be brought . . . within one year
 7   from the date of the occurrence of the violation.”       15 U.S.C.
 8   § 1640(e).       See also Consumer Solutions Reo LLC v. Hillery, 658
 9   F. Supp. 2d 1002, 1007-08 (N.D. Cal. 2009) (dismissing TILA
10   damages claim as barred by the one-year statute of limitations).
11           Davies’ TILA Claim was barred by the one-year statute of
12   limitations on such claims.17       Contrary to Davies’ suggestion
13   that the date of the 2010 Assignment should be used for the
14   purposes of his TILA Claim, the bankruptcy court properly took
15   judicial notice of the fact that the 2009 Assignment from MERS to
16   Deutsche was dated August 10, 2009, and recorded on August 20,
17   2009.        See Mack v. S. Bay Beer Distribs. Inc., 798 F.2d 1279,
18   1282 (9th Cir. 1986) (stating that “matters of public record” are
19   subject to judicial notice), overruled in part on other grounds
20   by, Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104
21
22           17
           The bankruptcy court did not rely on the statute of
23   limitations in reaching its decision. Rather, it dismissed the
     TILA claim based on Davies’ failure to plead actual damages. As
24   we may affirm the bankruptcy court’s decision on any grounds
     fairly supported by the record, see Wirum v. Warren (In re
25   Warren), 568 F.3d 1113, 1116 (9th Cir. 2009) (citations omitted),
26   we affirm the bankruptcy court’s decision to dismiss Davies’ TILA
     claim on the grounds that the claim was time barred. For this
27   reason, we need not address Davies’ argument that the bankruptcy
     court erred when it determined that to state a cause of action
28   under TILA, a plaintiff must plead actual damages.

                                          20
 1   (1991); Rosenfeld v. JP Morgan Chase Bank, N.A., 732 F. Supp. 2d
 2   952, 959 (N.D. Cal. 2010) (taking judicial notice of documents
 3   routinely recorded in a county's official records).   Any alleged
 4   violation of TILA would thus have occurred in September 2009.
 5   The Complaint was filed on January 7, 2011, well outside of the
 6   statute of limitations period, which lapsed in September 2010.
 7   We therefore conclude that the bankruptcy court properly
 8   dismissed Davies’ TILA Claim.
 9             b.   The Bankruptcy Court did not Err When it Denied
                    Davies Leave to Amend the TILA Claim
10
11        The bankruptcy court originally dismissed Davies’ TILA claim
12   with leave to amend but subsequently denied leave to amend on
13   Davies’ request.   On that basis, we conclude that the bankruptcy
14   court properly denied leave to amend as to the TILA Claim.
15        Were Davies’ waiver somehow insufficient to insulate the
16   bankruptcy court’s denial of leave to amend from reversal,
17   however, Davies’ TILA Claim was barred by the one-year statute of
18   limitations on such claims.   Thus, any amendment would be futile,
19   as no amendment could cure this defect.   Therefore, we conclude
20   that the bankruptcy court’s denial of leave to amend was also
21   proper on these grounds.
22        3.   The Fraud Claim18
23             a.   The Bankruptcy Court Properly Dismissed the Fraud
                    Claim
24
25
26        18
           Davies’ Complaint describes this cause of action as “fraud
27   in conveyance.” We read this to mean “fraud” as under California
     law since we cannot otherwise decipher the legal theory to which
28   these allegations supposedly relate.

                                     21
 1            “Under California law, the indispensable elements of a
 2   fraud claim include a false representation, knowledge of its
 3   falsity, intent to defraud, justifiable reliance, and damages.”
 4   See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir.
 5   2003) (internal quotations and citations omitted).
 6        Davies’ allegations as to this claim were as follows:      “that
 7   neither ‘MERS’ nor [Deutsche] paid any consideration for the
 8   ‘Promissory Note;’” “that if [Deutsche] purchased the ‘Promissory
 9   Note’ and paid ‘MERS,’ such assignment would constitute
10   fraudulent conveyance”; that the Defendants committed fraud by
11   processing falsified assignments of the Deed of Trust; and that
12   Deutsche falsely represented that they were entitled to payment
13   under the Note and that other representations regarding MERS were
14   false.    Compl. ¶¶ 102-105.   Davies also alleged that “[i]n
15   reliance on these representations, [he] was induced to make
16   payments to these Defendants when they were not entitled to such
17   money.”    Compl. ¶ 106.
18        Davies did not specify the dates on which any of these
19   alleged fraudulent representations occurred.    He did not provide
20   any details as to the content of these alleged
21   misrepresentations.    In fact, Davies himself refers to some of
22   these transactions as “unknown” or having occurred by “an unknown
23   mechanism.”    Compl. ¶¶ 14, 16.
24        Davies similarly did not provide specific dates on which he
25   made payments, which he made allegedly as a result of the
26   fraudulent representations at issue, the amounts of these
27   payments, or the methods of payment.    In short, Davies’
28   allegations did not include, as the heightened pleading standard

                                        22
 1   for fraud requires, “the who, what, when, where, and how of the
 2   misconduct charged.”    See Vess, 317 F.2d at 1106 (internal
 3   quotations and citations omitted).    See also Civil Rule 9(b) (“In
 4   alleging fraud . . . a party must state with particularity the
 5   circumstances constituting fraud . . . .”).   For these reasons,
 6   we conclude that the bankruptcy court properly dismissed the
 7   Fraud Claim.
 8               b.   The Bankruptcy Court did not Err When it Denied
                      Davies Leave to Amend the Fraud Claim
 9
10        Even if Davies’ allegations satisfied the applicable
11   heightened pleading requirements, however, Davies could not offer
12   any additional allegations to state a cause of action for fraud.
13   The fact that any and all payments he tendered on the Note pre-
14   date the August 2009 Assignment to Deutsche is fatal to any claim
15   of fraud.   We do not see how, if Davies made no payments after
16   the 2009 Assignment, he can establish that he justifiably relied
17   on any allegedly fraudulent representations made in connection
18   with that assignment.   For this reason, we conclude that the
19   bankruptcy court properly denied leave to amend as to the Fraud
20   Claim.
21        4.     The Libel Claim
22               a.   The Bankruptcy Court Properly Dismissed the Libel
                      Claim
23
24        Under California law, “[l]ibel is a false and unprivileged
25   publication by writing, printing, picture, effigy, or other fixed
26   representation to the eye, which exposes any person to hatred,
27   contempt, ridicule, or obloquy, or which causes him to be shunned
28   or avoided, or which has a tendency to injure him in his

                                      23
 1   occupation.”     Cal. Civ. Code § 45.   “Publication means
 2   communication to some third person who understands the defamatory
 3   meaning of the statement and its application to the person to
 4   whom reference is made.”    Smith v. Maldonado, 72 Cal. App. 4th
 5   637, 645, 85 Cal. Rptr. 2d 397, 402 (1999).
 6          In the Complaint, Davies alleged that “[t]he conduct of
 7   Defendants constitutes libel that tends to defame, disparage, and
 8   injure Plaintiff in his business and reputation and has also
 9   caused pain and suffering,” that “such libel has occurred on a
10   continuing basis from approximately July 2009 through the
11   present,” and that such conduct was “willful, fraudulent,
12   malicious and oppressive.”    Compl. ¶ 112.
13          We agree with the bankruptcy court that conduct is
14   insufficient to support a cause of action for libel under
15   California law.    Without allegations as to any communications, of
16   which the Complaint is entirely devoid, we conclude that the
17   bankruptcy court properly dismissed the Libel Claim.
18               b.    The Bankruptcy did not Err When it Denied Davies
                       Leave to Amend the Libel Claim
19
20          Even if Davies had alleged publication in a manner that
21   satisfied one of the predicates to state a cause of action for
22   libel, we do not see how such publication would give rise to the
23   type of injury contemplated by the statute.     We are not prepared
24   to conclude that any communication relating to the events in this
25   case would support a cause of action for libel under California
26   law.   For these reasons, we conclude that any amendment as to
27   this claim would be futile and that the bankruptcy court properly
28   denied Davies leave to amend the Libel Claim.

                                       24
 1        5.      The Quiet Title Claim
 2                a.   The Bankruptcy Court Properly Dismissed the Quiet
                       Title Claim
 3
 4        To state a cause of action to quiet title under California
 5   law, a plaintiff must provide a verified complaint, which
 6   includes:
 7        (a) A description of the property that is the subject of
          the action. . . . In the case of real property, the
 8        description shall include both its legal description and
          its street address or common designation, if any.
 9
          (b) The title of the plaintiff as to which a
10        determination under this chapter is sought and the basis
          of the title. . . .
11
          (c) The adverse claims to the title of the plaintiff
12        against which a determination is sought.
13        (d) The date as of which the determination is sought. If
          the determination is sought as of a date other than the
14        date the complaint is filed, the complaint shall include
          a statement of the reasons why a determination as of that
15        date is sought.
16        (e) A prayer for the determination of the title of the
          plaintiff against the adverse claims.
17
18   Cal. Civ. Proc. Code § 761.020.       “[U]nder California law, a
19   plaintiff seeking to quiet title in the face of a foreclosure
20   must allege tender or an offer to tender of [sic] the amount
21   borrowed.”    Mangindin, 637 F. Supp. 2d at 712 (citations
22   omitted).    See also Nool v. Homeq Servicing, 653 F. Supp. 2d
23   1047, 1056 (E.D. Cal. 2009) (“A mortgagor of real property
24   cannot, without paying his debt, quiet his title against the
25   mortgagee.”) (citation omitted).
26        Among other deficiencies in Davies’ Complaint, the
27   bankruptcy court determined that Davies’ failure to allege tender
28   or an offer of tender of the amount borrowed rendered this claim

                                          25
 1   deficient.    We agree.   Even if the other allegations in Davies’
 2   Complaint otherwise stated a claim to quiet title, this failure
 3   in and by itself would be sufficiently fatal to this cause of
 4   action.    For this reason, we conclude that the bankruptcy court
 5   properly dismissed the Quiet Title Claim.
 6                b.   The Bankruptcy Court did not Err When it Denied
                       Davies Leave to Amend the Quiet Title Claim
 7
 8        Davies has filed a Chapter 7 bankruptcy petition.     Any
 9   allegation that he is able to tender the amount borrowed would be
10   wholly inconsistent with his bankruptcy filing and his bankruptcy
11   schedules, which reflect that he is insolvent.    Moreover, Davies
12   has not made payments since April 2009 nor has he placed any
13   amounts relating to unpaid mortgage payments in a segregated bank
14   account.   For these reasons, any amendment to the Complaint as to
15   this claim, specifically as to whether Davies is able to tender
16   the amount borrowed, would be futile.    We thus conclude that the
17   bankruptcy court properly denied leave to amend as to the Quiet
18   Title Claim.
19   B.   The Bankruptcy Court Properly Determined the Doctrines of
          Issue Preclusion and Judicial Estoppel did not Apply
20
          1.      Issue Preclusion
21
22        Federal common law determines the preclusive effect of a
23   federal judgment.    Taylor v. Sturgell, 553 U.S. 880, 891 (2008);
24   W. Sys., Inc. v. Ulloa, 958 F.2d 864, 871 n.11 (9th Cir. 1992)
25   (citing Robi, 838 F.2d at 322).     The party asserting issue
26   preclusion must establish that (1) the issue was actually decided
27   by a court in an earlier action, (2) the issue was necessary to
28   the judgment in that action, and (3) there was a valid and final

                                       26
 1   judgment.    New Hampshire v. Maine, 532 U.S. 742, 748 (2001)
 2   (citing Restatement (Second) of Judgments §§ 17, 27 (1980))
 3   (further citations omitted).
 4        The bankruptcy court properly rejected Davies’ argument that
 5   the order denying relief from stay on standing grounds precluded
 6   Deutsche from advocating its position here.   As has been
 7   previously explained by this Panel:
 8        Relief from stay proceedings . . . are primarily
          procedural; they determine whether there are sufficient
 9        countervailing equities to release an individual creditor
          from the collective stay. One consequence of this broad
10        inquiry is that a creditor’s claim or security is not
          finally determined in the relief from stay proceeding.
11        Johnson v. Righetti (In re Johnson), 756 F.2d 738, 740-41
          (9th Cir. 1985) (“Hearings on relief from stay are thus
12        handled in a summary fashion. The validity of the claim
          or contract underlying the claim is not litigated during
13        the hearing.”); Grella v. Salem Five Cent Sav. Bank,
          45 F.3d 26, 33 (1st Cir. 1994) (“We find that a hearing
14        on a motion for relief from stay is merely a summary
          proceeding of limited effect . . . .”); First Fed. Bank
15        v. Robbins (In re Robbins), 310 B.R. 626, 631 (9th Cir.
          BAP 2004).
16
17   Veal, 450 B.R. at 914.    For this reason, we conclude that the
18   bankruptcy court properly determined that the order denying
19   relief from stay on standing grounds did not have issue
20   preclusive effect.
21        2.      Judicial Estoppel
22        “Judicial estoppel is an equitable doctrine that precludes a
23   party from gaining an advantage by asserting one position, and
24   then later seeking an advantage by taking a clearly inconsistent
25   position.”    Hamilton, 270 F.3d at 782 (citing Rissetto v.
26   Plumbers & Steamfitters Local 343, 94 F.3d 597, 600-01 (9th Cir.
27   1996)).   The aim of the doctrine is not only to prevent a party
28   from gaining an advantage by asserting inconsistent positions,

                                      27
 1   but also to ensure “the orderly administration of justice and
 2   . . . the dignity of judicial proceedings,” and to “protect
 3   against a litigant playing fast and loose with the courts.”
 4   Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990).
 5           We have tried to parse Davies’ arguments that Deutsche is
 6   somehow judicially estopped from asserting its position in this
 7   case.    First, Davies argues that Deutsche’s position in the lift
 8   stay proceedings, based on an assignment from MERS, as nominee
 9   for Universal Mortgage, is inconsistent with Deutsche’s current
10   position: that it is the beneficiary under the Deed of Trust.
11   Second, Davies argues that Deutsche, “as Trustee holds title for
12   the benefit of a Trust that has been closed for over 3 years.
13   Such inconsistency is judicially stopped [sic] by the judicial
14   finding . . . that [Deutsche] has no legal standing.”    Davies’
15   Mot. for J. at 8.    Third, Davies argues that Deutsche is
16   judicially estopped from denying a principal-agent relationship
17   between it and OneWest.    This last argument is based on a case as
18   to which this Panel denied judicial notice on October 6, 2011.
19   See supra note 14.
20           To the extent the first two arguments are mere variants of
21   Davies’ argument before the bankruptcy court, we agree with the
22   bankruptcy court that Davies did not satisfy the predicates
23   necessary to assert judicial estoppel.    Thus, the bankruptcy
24   court properly declined to apply the doctrine in this case.
25           We also conclude that Davies’ third argument fails, but for
26   a different reason.    Davies presents it for the first time on
27   appeal.    By failing to demonstrate that he properly presented
28   this argument to the bankruptcy court, he has waived the

                                       28
 1   argument, and we need not address the merits here.   See Ellsworth
 2   v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904,
 3   919 (9th Cir. BAP 2011) (citing Golden v. Chicago Title Ins. Co.
 4   (In re Choo), 273 B.R. 608, 613 (9th Cir. BAP 2002); Branam v.
 5   Crowder (In re Branam), 226 B.R. 45, 55 (9th Cir. BAP 1998),
 6   aff’d, 205 F.3d 1350 (9th Cir. 1999) (unpublished table
 7   decision)).19
 8                              CONCLUSION
 9        For the reasons set forth above, we AFFIRM the bankruptcy
10   court’s order granting Deutsche’s Motion for Judgment and the
11   bankruptcy court’s order denying Davies’ Motion for Judgment.
12
13
14
15
16
          19
           On appeal, Davies also argues for the first time that the
17   doctrine of laches somehow applies in this case: “[L]aches also
     appl[ies] as the parties and the issues are the same. The
18   determination made with findings of fact as an appealable
19   decision, and Deutsche Bank sat complacently while watching from
     the sidelines.” June 2011 Aplt. Opening Br. at 39. The record
20   does not show that Davies offered this argument to the bankruptcy
     court, and we need not entertain it here. See Ellsworth, 455
21   B.R. at 919 (citations omitted).
          However, even if Davies had properly raised the argument
22
     before the bankruptcy court, laches is typically available as a
23   defense to a party against whom an action is brought. See Jarrow
     Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 (9th
24   Cir. 2002) (“Laches is an equitable time limitation on a party’s
     right to bring suit . . ., resting on the maxim that one who
25   seeks the help of a court of equity must not sleep on his
26   rights.”) (internal citations and citations omitted). See also
     Fed. R. Civ. P. 8(c) (listing laches as an affirmative defense).
27   Given that Davies initiated the Adversary Proceeding from which
     this appeal arises, we consider this argument rather odd and
28   misplaced.

                                    29
