                                                                            FILED
                             NOT FOR PUBLICATION                            OCT 21 2014

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



                             FOR THE NINTH CIRCUIT


W. MARK FRAZER; KONILYNN                         No. 12-35502
FRAZER,
                                                 D.C. No. 3:11-cv-05454-RBL
               Appellants,

  v.                                             MEMORANDUM*

DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee for Morgan
Stanley ABS Capital I Inc Trust 2006-NC4
its Successors in Interest, Agents,
Assignees and/or Assignors and through
its Servicing Agent Wells Fargo Bank
N.A.; NORTHWEST TRUSTEE
SERVICES INC.,

               Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                             Submitted October 14, 2014**

Before:        LEAVY, GOULD, and BERZON, 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).
      Chapter 7 debtors W. Mark Frazer and Konilynn Frazer appeal pro se from

the district court’s judgment affirming the bankruptcy court’s summary judgment

dismissing the Frazers’ adversary proceeding against Deutsche Bank National

Trust Company. We have jurisdiction under 28 U.S.C. § 158(d). We review

independently the bankruptcy court’s decision without deference to the district

court’s determinations. Leichty v. Neary (In re Strand), 375 F.3d 854, 857 (9th

Cir. 2004). We review de novo the bankruptcy court’s conclusions of law and for

clear error its factual findings. Id. We affirm.

      The bankruptcy court properly granted summary judgment to appellee

Deutsche Bank National Trust because the Frazers’ loan is in default, and appellee

had physical possession of the mortgage note indorsed in blank and therefore had

the power to enforce the mortgage note. See Wash. Rev. Code § 61.24.030(7) (a

declaration by the beneficiary stating that the beneficiary is the actual holder of the

promissory note or other obligation secured by the deed of trust shall be sufficient

proof for nonjudicial foreclosure); Trujillo v. Nw. Tr. Servs., Inc., 326 P.3d 768,

774 (Wash. Ct. App. 2014) (holding that “[a]bsent conflicting evidence, the

declaration [of a note holder under Wash. Rev. Code § 61.24.030(7)] should be

taken as true”).

       We reject the Frazers’ contentions concerning allegedly inadequate


                                           2                                     12-35502
discovery, alleged due process violations, and claims arising from the pooling and

servicing agreement to which they were not parties.

      We do not consider any documents attached to the Frazers’ opening brief

that are not part of the district court record. See Kirshner v. Uniden Corp. of Am.,

842 F.2d 1074, 1077 (9th Cir. 1988).

      The Frazers’ motion to strike Deutsche Bank National Trust Company’s

answering brief, set forth in the Frazers’ reply brief, is denied.

      The Frazers’ motion to remove or disqualify Deutsche Bank National Trust

Company’s counsel, Lane Powell, PC, and Mr. Spellman, on the basis of

Spellman’s previous representation, set forth in the Frazers’ reply brief, is denied.

See Wash. R. Prof’l Conduct 1.9(a) (no violation of an attorney’s duty to a former

client where current representation is not “substantially related” to previous

representation).

      AFFIRMED.




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