                                                              FILED
 1                                                             MAY 30 2013

 2                                                         SUSAN M SPRAUL, CLERK
                                                             U.S. BKCY. APP. PANEL
                                                             OF THE NINTH CIRCUIT
 3                   UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                             OF THE NINTH CIRCUIT
 5   In re:                        )          BAP No.   SC-11-1541-JuBaPa
                                   )
 6   ANDREW RALPH BELLO, SR.,      )          Bk. No.   10-16981
                                   )
 7                  Debtor.        )          Adv. No. 10-90528
     ______________________________)
 8   ANDREW RALPH BELLO, SR.,      )
                                   )
 9                  Appellant,     )
                                   )
10   v.                            )          M E M O R A N D U M*
                                   )
11   CHASE HOME FINANCE LLC,       )
                                   )
12                  Appellee.      )
     ______________________________)
13
                       Argued and Submitted on May 15, 2013
14                           at Pasadena, California
15                             Filed - May 30, 2013
16                Appeal from the United States Bankruptcy Court
                      for the Southern District of California
17
               Honorable Peter W. Bowie, Bankruptcy Judge, Presiding
18                            _______________________
19   Appearances:       Ruben F. Arizmendi, Esq., Arizmendi Law Firm,
                        argued for Appellant Andrew Ralph Bello, Sr.;
20                      Sung-Min Christopher Yoo, Esq., Adorno Yoss
                        Alvarado & Smith, argued for Appellee JP Morgan
21                      Chase Bank, N.A., as Successor by Merger to Chase
                        Home Finance LLC.
22                           _________________________
23   Before:      JURY, BASON** and PAPPAS, Bankruptcy Judges.
24
25        *
            This disposition is not appropriate for publication.
26   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
27   See 9th Cir. BAP Rule 8013-1.
28        **
            Hon. Neil W. Bason, United States Bankruptcy Judge for
     the Central District of California, sitting by designation.

                                        -1-
 1            Chapter 131 debtor, Andrew Ralph Bello, Sr., filed a second
 2   amended complaint (SAC) against Ameriquest Home Finance
 3   (Ameriquest), Town and Country Title Services, Inc. (TCTSI),
 4   JP Morgan Chase Specialty Mortgage, L.L.C. (JPMC) and Mortgage
 5   Electronic Registrations System, Inc. (MERS) (collectively,
 6   Defendants).      Debtor sought declaratory relief and asserted
 7   claims for Failure to Perfect Deed of Trust, Unfair and
 8   Deceptive Acts and Practices, Violations of the Bankruptcy Code
 9   (§§ 362(a) and 105(a)), and Invalid Lien on Property.
10   Defendant, JPMC, as successor by merger to Chase Home
11   Finance LLC (Chase), filed a motion to dismiss the SAC under
12   Civil Rule 12(b)(6), which the bankruptcy court granted with
13   prejudice by order entered on November 30, 2011.2     Debtor
14   appeals from that order.      We AFFIRM.
15                                  I.   FACTS
16   A.       Prepetition Events
17            In August 2004, debtor obtained a residential mortgage loan
18   from Ameriquest.      The loan was secured by a deed of trust (DOT)
19   encumbering real property located on Rancho Bernardo Road in San
20   Diego, California.      The DOT, recorded in September 2004 in San
21   Diego County, identified Ameriquest as the lender and
22   beneficiary, TCTSI as the trustee, and debtor as the borrower.
23
24        1
            Unless otherwise indicated, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
25
     “Rule” references are to the Federal Rules of Bankruptcy
26   Procedure and “Civil Rule” references are to the Federal Rules of
     Civil Procedure.
27
          2
            JPMC, as successor by merger to Chase, is the only
28   defendant participating in this appeal.

                                         -2-
 1              On January 8, 2009, an assignment (Assignment) was recorded
 2   showing that MERS was assigned all beneficial interest under the
 3   DOT.
 4              Debtor defaulted on the loan.   On February 23, 2009, a
 5   notice of default and election to sell was recorded.
 6              On March 18, 2009, JPMC executed a substitution of trustee,
 7   naming NDEX West, LLC (NDEX) as trustee under the DOT.
 8              On March 19, 2009, MERS assigned JPMC all beneficial
 9   interest under the DOT (Second Assignment).
10              On March 30, 2009, the substitution of trustee and Second
11   Assignment were recorded.
12              On January 5, 2010, a notice of trustee’s sale in
13   connection with the DOT was recorded.
14   B.         Bankruptcy Events
15              On September 24, 2010, debtor filed his chapter 13
16   petition.
17              On October 25, 2010, Chase, as Servicing Agent to JPMC,
18   filed a proof of claim asserting a secured claim in the amount
19   of $322,583.83 based on the amount loaned to debtor by
20   Ameriquest.       Debtor did not object to the proof of claim.
21                             The Adversary Complaint
22              On November 1, 2010, debtor commenced the adversary
23   proceeding out of which this appeal arises.3        On December 27,
24   2010, JPMC filed a motion to dismiss under Civil Rule 12(b)(6)
25
26          3
            We take judicial notice of the complaint and other
27   pleadings docketed and imaged in Bankr. Adv. No. 10-90528.
     Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R.
28   227, 233 n.9 (9th Cir. BAP 2003).

                                         -3-
 1   which the bankruptcy court granted without prejudice.
 2        On February 28, 2011, debtor filed a first amended
 3   complaint (FAC).   The FAC asserted five claims for relief:
 4   (1) Declaratory Relief; (2) Dischargeability on the Basis of
 5   Fraud; (3) Invalid Lien on Property; (4) Securitization of Lien;
 6   and (5) Fraud under Securities Exchange Act.   On March 31, 2011,
 7   JPMC moved to dismiss the FAC under Civil Rule 12(b)(6) which
 8   the bankruptcy court granted without prejudice.
 9        On June 7, 2011, debtor filed the SAC which is at issue in
10   this appeal.   The SAC attached as exhibits the substitution of
11   trustee and the Second Assignment which were recorded on
12   March 30, 2009.    Debtor generally alleged that the substitution
13   of trustee dated March 18, 2009, and recorded on March 30, 2009,
14   was defective.    According to debtor, JPMC, as alleged
15   beneficiary under the DOT, was not authorized to substitute NDEX
16   as the new trustee on March 18, 2009, because the assignment of
17   the DOT, whereby MERS assigned to JPMC its beneficial interest
18   under the DOT, was not signed before a notary public until the
19   next day, March 19, 2009.   This defective transfer, debtor
20   alleged, “reflects in part the deceptive practices that
21   Defendants have engaged in with many other borrowers at a
22   national level.”
23        Debtor asserted five claims for relief in the SAC:
24   (1) Declaratory Relief; (2) Failure to Perfect Deed of Trust;
25   (3) Unfair and Deceptive Acts and Practices; (4) Violations of
26   the Bankruptcy Code (§§ 362(a) and 105(a)); and (5) Invalid Lien
27   on Property.   The second, third, and fourth claims for relief
28   were new to the adversary; they were not alleged in the FAC.

                                     -4-
 1           On June 24, 2011, JPMC filed a motion to dismiss the SAC
 2   under Civil Rule 12(b)(6).          In connection with its motion, JPMC
 3   requested that the bankruptcy court take judicial notice of the
 4   following:    (1) the DOT recorded on September 1, 2004; (2) the
 5   Assignment recorded on January 8, 2009; (3) the notice of
 6   default recorded on February 23, 2009; (4) the Second Assignment
 7   recorded on March 30, 2009; (5) the substitution of trustee
 8   recorded on March 30, 2009; and (6) the notice of trustee’s sale
 9   recorded on January 5, 2010.
10           On August 8, 2011, the bankruptcy court heard the matter
11   and orally dismissed the SAC with prejudice.
12           On September 27, 2011, debtor filed his notice of appeal.
13           On November 30, 2011, the bankruptcy court entered the
14   order dismissing the SAC with prejudice.4
15                                II.    JURISDICTION
16           The bankruptcy court had jurisdiction over this proceeding
17   under 28 U.S.C. §§ 1334 and 157(b)(2)(K).             We have jurisdiction
18   under 28 U.S.C. § 158.
19                                      III.    ISSUE
20           Whether the bankruptcy court erred in dismissing the SAC
21   with prejudice under Civil Rule 12(b)(6).
22                          IV.    STANDARD OF REVIEW
23           We review de novo the bankruptcy court’s grant of a motion
24   to dismiss under Civil Rule 12(b)(6).              Movsesian v. Victoria
25   Versicherung AG, 629 F.3d 901, 905 (9th Cir. 2010).              We may
26   affirm the bankruptcy court’s dismissal of a complaint “‘only if
27
28       4
             Debtor’s case has since been dismissed.

                                               -5-
 1   it is clear that no relief could be granted under any set of
 2   facts that could be proved consistent with the allegations.’”
 3   Cooke, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc.,
 4   911 F.2d 242, 244 (9th Cir. 1990).
 5                              V.   DISCUSSION
 6   A.   General Pleading Standards
 7        Generally, a plaintiff’s burden at the pleading stage is
 8   relatively light.    Civil Rule 8(a)(2), made applicable to
 9   adversary proceedings by Rule 7008, requires only that the
10   complaint contain “a short and plain statement of the claim
11   showing that the pleader is entitled to relief.”   In turn, this
12   means that the complaint must include “sufficient allegations to
13   put defendants fairly on notice of the claims against them.”
14   McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).      When a
15   plaintiff asserts multiple claims against multiple defendants,
16   this fair notice standard requires that the allegations in the
17   complaint must show which defendants are liable to the plaintiff
18   for which wrongs.    See Gauvin v. Trombatore, 682 F.Supp. 1067,
19   1071 (N.D. Cal. 1988) (plaintiff must allege the basis of his
20   claim against each defendant to satisfy [Civil Rule] 8(a)(2)).
21        Allegations regarding fraud are subject to a heightened
22   pleading standard.   Civil Rule 9(b), made applicable to
23   adversary proceedings by Rule 7009, requires that a plaintiff
24   must state “with particularity the circumstances constituting
25   fraud . . . .”   The Ninth Circuit has provided guidance for the
26   “with particularity” requirement by stating that to comport with
27   Civil Rule 9(b) the complaint must (1) specify the averred
28   fraudulent representations; (2) aver the representations were

                                      -6-
 1   false when made; (3) identify the speaker; (4) state when and
 2   where the statements were made; and (5) state the manner in
 3   which the representations were false and misleading.   Lancaster
 4   Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405
 5   (9th Cir. 1991).   Because fraud encompasses a wide variety of
 6   circumstances, the requirements of Civil Rule 9(b) — like Civil
 7   Rule 8(a)(2) — should provide all defendants with sufficient
 8   information to formulate a response.    Therefore, the complaint
 9   cannot lump multiple defendants together but must “inform each
10   defendant separately of the allegations surrounding [its]
11   alleged participation in the fraud.”    Swartz v. KPMB LLP,
12   476 F.3d 756, 764-65 (9th Cir. 2007).
13   B.   Standards for Dismissal Under Civil Rule 12(b)(6)
14        The rules which set forth the pleading standards under
15   Civil Rules 8(a)(2) and 9(b) overlie the standards for deciding
16   motions to dismiss a complaint under Civil Rule 12(b)(6).     When
17   ruling on a motion to dismiss under Civil Rule 12(b)(6), we are
18   instructed first to separate the factual and legal elements of a
19   claim.    In examining the factual elements of a claim, “we accept
20   all factual allegations in the complaint as true and construe
21   the pleadings in the light most favorable to the nonmoving
22   party.”   Movsesian, 629 F.3d at 905 (quoting Knievel v. ESPN,
23   393 F.3d 1068, 1072 (9th Cir. 2005)(quotation marks omitted)).
24        We then must determine whether the facts alleged are
25   sufficient to show that the plaintiff has a plausible claim for
26   relief.   Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(quoting
27   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
28        While a complaint attacked by a Rule 12(b)(6) motion

                                     -7-
 1           to dismiss does not need detailed factual allegations,
             a plaintiff’s obligation to provide the grounds of his
 2           entitlement to relief requires more than labels and
             conclusions, and a formulaic recitation of the
 3           elements of a cause of action will not do. Factual
             allegations must be enough to raise a right to relief
 4           above the speculative level . . . .
 5
     Twombly, 550 U.S. at 555.      Determining whether a complaint
 6
     states a plausible claim for relief will “be a context-specific
 7
     task that requires the reviewing court to draw on its judicial
 8
     experience and common sense.”     Iqbal, 129 S.Ct. at 1950.         In the
 9
     end, the determinative question is whether there is any set of
10
     “facts that could be proved consistent with the allegations of
11
     the complaint” that would entitle plaintiff to some relief.
12
     Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Cooke,
13
     Perkiss & Liehe, 911 F.2d at 244.         We will not assume that
14
     plaintiffs “can prove facts which [they have] not alleged, or
15
     that the defendants have violated . . . laws in ways that have
16
     not been alleged.”    Associated Gen. Contractors of Cal., Inc. v.
17
     Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
18
             With respect to the legal elements of a claim, our mandate
19
     is different.    We are not “bound to accept as true a legal
20
     conclusion couched as a factual allegation.”        Papasan v. Allain,
21
     478 U.S. 265, 286 (1986).
22
             We now examine the SAC with the foregoing standards in
23
     mind.
24
     C.      Motion to Dismiss:   The Merits
25
             At oral argument before us debtors’ counsel made reference
26
     to claims asserted in debtors’ original complaint and the FAC
27
     which alleged facts pertaining to “robo-signing.”        However,
28

                                       -8-
 1   debtor amended the complaint by deleting those facts in his SAC.
 2   The complaint which is the subject of this appeal is the SAC.
 3            Most of debtor’s claims in the SAC arise out of the alleged
 4   invalid substitution of trustee.        As noted by the bankruptcy
 5   court, the fact that the assignment of the DOT to JPMC was
 6   executed one day after JPMC executed the substitution of the
 7   trustee did not affect the transfer “at that particular time.”
 8   Hr’g Tr. 8/11/11 at 11.     Rather, the substitution of the trustee
 9   was effective when JPMC became the beneficiary under the DOT and
10   both the substitution and Second Assignment were recorded on
11   March 30, 2009.     “From the time the substitution is filed for
12   record, the new trustee shall succeed to all the powers, duties,
13   authority, and title granted and delegated to the trustee named
14   in the deed of trust.”     Cal. Civ. Code § 2934a(a)(4).
15   Accordingly, contrary to debtor’s assertion, the substitution of
16   trustee was valid.
17                       Failure to Perfect Deed of Trust
18            Under this claim for relief, debtor alleged that none of
19   the Defendants held a perfected and secured claim against his
20   property.     Because this claim arises out of the alleged invalid
21   substitution of trustee, it fails as a matter of law.
22            In addition, debtor failed to show any improprieties in the
23   chain of title.     The facts appearing on the face of the
24   documents submitted by JPMC in conjunction with its motion to
25   dismiss5 directly contradict debtor’s legal conclusion that
26
          5
27          In deciding a motion to dismiss, the trial court may take
     judicial notice of matters of public record. United States v.
28                                                      (continued...)

                                       -9-
 1   “none of Defendants hold[s] a perfected and secured claim on
 2   debtor’s property.”    The documents show that JPMC was the
 3   assignee of the beneficial interest of the trust deed and that
 4   assignment was duly recorded.    Therefore, JPMC had a secured
 5   claim against debtor’s property.
 6        For these reasons, there is no set of “facts that could be
 7   proved consistent with the allegations of the complaint” that
 8   would entitle plaintiff to some relief.   Swierkiewicz, 534 U.S.
 9   at 514.   The bankruptcy court therefore properly dismissed this
10   claim.
11                  Unfair Deceptive Acts and Practices
12        Under this claim for relief, debtor alleged that
13   Defendants’ acts constituted an unlawful business act or
14   practice within the meaning of the Consumer Legal Remedies Act
15   (CLRA) contained in Cal. Civil Code § 1750 et seq.
16        On appeal, debtor argues that by providing false
17   documentation to the bankruptcy court regarding the defective
18   appointment of NDEX as trustee under the DOT, the actions of
19   Chase constitute an unlawful business act or practice within the
20   meaning of the CLRA.   Debtor further contends that because he is
21   the victim of Chase’s fraudulent conduct, the CLRA should be
22   found applicable in this case.
23        Debtor’s allegations against Defendants under this claim
24   are general and conclusory.   Cal. Civil Code § 1770(a) states:
25   “The following unfair methods of competition and unfair or
26
27
          5
           (...continued)
28   Corinthian Colleges, 655 F.3d 984, 998-999 (9th Cir. 2011).

                                      -10-
 1   deceptive acts or practices undertaken by any person in a
 2   transaction intended to result or which results in the sale or
 3   lease of goods or services are unlawful: . . . .”     The section
 4   then lists twenty-five categories of unfair methods of
 5   competition and unfair or deceptive acts or practices.      Debtor
 6   does not allege facts that fall within any of those categories
 7   in support of his claim against Defendants nor does he cite even
 8   one of the categories by number.     Consequently, there is no
 9   factual basis for his claim under the CLRA against each named
10   defendant in violation of Rules 8(a)(2) and 9(b).     Gauvin,
11   682 F.Supp. at 1071; Swartz, 476 F.3d at 764-65.
12            Debtor also does not make any argument on appeal
13   demonstrating that Defendants’ actions were undertaken “in a
14   transaction intended to result or which results in the sale or
15   lease of goods or services.”     Rather, as found by the bankruptcy
16   court, the transaction at issue was related to real property.
17   The CLRA is generally inapplicable to real estate transactions.6
18   See McKell v. Wash. Mut., Inc., 142 Cal.App. 4th 1457, 1488
19   (Cal. Ct. App. 2006).
20            Finally, as noted above, the substitution of trustee was
21   valid, as a matter of law.     Therefore, the alleged defect in the
22
          6
23          In any event, even if it were applicable, Cal. Civil Code
     § 1782 provides that prior to filing an action for damages under
24   the CLRA and thirty (30) days or more before the commencement of
     such action for damages, the consumer must: (1) notify the person
25   alleged to have employed or committed methods, acts, or practices
26   declared unlawful under Cal. Civil Code § 1770; and (2) demand
     that the person correct, repair, replace, or otherwise rectify
27   the goods or services alleged to be violation of Cal. Civil Code
     § 1770. Nowhere does the SAC allege that such notice was given
28   within the requisite time frame.

                                       -11-
 1   substitution of trustee could not support an unlawful business
 2   act or practice even if the CLRA were applicable.
 3        In the end, debtor’s allegations under this claim for
 4   relief amount to nothing more than a legal conclusion.     We are
 5   not “bound to accept as true a legal conclusion couched as a
 6   factual allegation.”   Papasan, 478 U.S. at 286.     The bankruptcy
 7   court properly dismissed this claim.
 8                    Violations of the Bankruptcy Code
 9        Under this claim for relief, debtor sought the recovery of
10   actual and punitive damages from Defendants and equitable relief
11   pursuant to §§ 362(a) and 105(a) for intentionally filing a
12   false and fraudulent proof of claim in violation of § 501 and
13   Rules 3001(c) and 3001(d).
14        As noted above, the substitution of trustee was valid as a
15   matter of law.   Therefore, the alleged defect in the
16   substitution of trustee cannot support this claim, if indeed
17   this is the factual underpinning for debtor’s allegation that
18   the proof of claim filed by Chase was false and fraudulent.
19        Moreover, debtor has not asserted a claim under § 105 that
20   would entitle him to relief because there is no private right of
21   action under the statute.    Walls v. Wells Fargo Bank, N.A.,
22   276 F.3d 502 (9th Cir. 2002).
23        Debtor also seeks actual and punitive damages for the
24   Defendants’ violation of the stay, but there are no facts
25   alleged that would support a claim for violation of the stay
26   described in any of the categories under § 362(a)(1)-(8).     In
27   addition, the filing of a proof of claim alone does not
28   constitute a violation of the stay.    See Campbell v. Countrywide

                                     -12-
 1   Homes Loans, Inc., 545 F.3d 348, 355 (5th Cir. 2008) (legal
 2   actions in the bankruptcy court do not amount to violations of
 3   the stay).    In sum, debtor’s allegations fail to state a claim
 4   for relief under the statutes cited.    Therefore, the bankruptcy
 5   court properly dismissed this claim.7
 6                          Invalid Lien on Property
 7           Under this claim for relief, debtor alleged that the loan
 8   in question was not valid as it was obtained as the result of
 9   fraud.    Debtor further alleged that Defendants, either knowingly
10   or with reckless disregard for the truth, made false statements
11   of material fact, on which he relied.
12           Debtor’s allegations relate to the origination of the loan.
13   However, it is plain from the face of the documents provided by
14   JPMC that not all of them were involved in the origination of
15   debtor’s loan.    Debtor simply lumps Defendants together without
16   specifying the averred fraudulent representations, identifying
17   the speaker, stating when and where the statements were made or
18   stating the manner in which the representations were false and
19   misleading.    Lancaster Cmty. Hosp., 940 F.2d at 405.   “The
20   allegations fail to show any nexus between the alleged
21   inducement to enter into the note and DOT at the beginning of
22
23
         7
            In the alternative, the bankruptcy court dismissed
24   debtor’s second, third and fourth claims for relief under Civil
     Rule 15(a)(2). Generally, a plaintiff may not add new causes of
25   action or parties without leave of the court or stipulation of
26   the parties pursuant to Civil Rule 15(a)(2). Debtor does not
     contend on appeal that the bankruptcy court erred in dismissing
27   the second, third and fourth claims for relief on this ground.
     Those arguments are deemed waived for purposes of this appeal.
28   Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

                                      -13-
 1   this transaction and what that has to do with any of the
 2   Defendants.”    Hr’g Tr. 8/8/11 at 13:1-2.    In short, no one can
 3   tell from reading the allegations in this claim for relief which
 4   defendant made what misrepresentation or even what the alleged
 5   misrepresentations were.   Due to these shortcomings, the
 6   heightened pleading requirements for fraud under Civil Rule 9(b)
 7   were not met.
 8        Debtor does not address any of these issues on appeal,
 9   instead stating that because he was seeking to invalidate a lien
10   on his property, the proper procedure was for him to file an
11   adversary proceeding.   Debtor then again re-alleges that the
12   substitution of trustee was invalid and thus any lien on the
13   property where NDEX is named as trustee should also be found to
14   be invalid.    These conclusory statements do not constitute a
15   viable argument on appeal.   Therefore, this claim fails as a
16   matter of law and was properly dismissed.
17                            Declaratory Relief
18         Under this claim, debtor sought an equitable decree
19   enjoining Defendants from filing false claims and declarations
20   or from continuing to assert any claim as to an enforceable
21   secured or unsecured claim against property of the estate in
22   bankruptcy.    As these allegations relate to the alleged invalid
23   substitution of trustee, they fail as a matter of law.
24        Further, the Declaratory Judgment Act (DJA), 28 U.S.C.
25   § 2201, requires that an “actual controversy” before the court
26   may declare the rights and other legal relations of any
27   interested party seeking such declaration, whether or not
28   further relief is or could be sought.   The DJA’s “operation is

                                     -14-
 1   procedural only” and does not provide an independent theory for
 2   recovery.     Team Enters., LLC v. W. Inv. Real Estate Trust,
 3   721 F.Supp.2d 898, 911 (E.D. Cal. 2010).
 4            Debtor’s declaratory relief claim falls with the demise of
 5   the other claims and the absence of a cognizable justiciable
 6   controversy.     Because debtor’s declaratory relief claim cannot
 7   stand alone, the bankruptcy court properly dismissed this
 8   claim.8
 9                               VI.   CONCLUSION
10            Having determined there is no basis for reversal, we AFFIRM
11   the order on appeal.
12
13
14
15
16
17
18
19
20
21
22
23
          8
            Although we review a bankruptcy court’s decision to
24   dismiss a complaint with prejudice for an abuse of discretion,
     Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th
25   Cir. 2000), debtor has made no arguments in his briefs that
26   specifically addressed the “with prejudice” aspect of the court’s
     ruling. Those arguments are deemed waived for purposes of this
27   appeal. Smith v. Marsh, 194 F.3d at 1052. Even if we were to
     consider the issue, on this record we cannot conclude that the
28   court abused its discretion.

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