                                                                           FILED
                             NOT FOR PUBLICATION
                                                                              MAY 04 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                              FOR THE NINTH CIRCUIT


In re: BENJAMIN MENJIVAR,                        No. 14-60012

               Debtor,                           BAP No. 12-1608


BENJAMIN MENJIVAR; et al.,                       MEMORANDUM*

               Appellants,

 v.

WELLS FARGO BANK, N.A., Successor
and/or Assignee of World Savings Bank,
FSB, its Sucessors and or Assignees,

               Appellee.


                            Appeal from the Ninth Circuit
                             Bankruptcy Appellate Panel
            Pappas, Kurtz, and Ballinger, Jr., Bankruptcy Judges, Presiding

                         Argued and Submitted February 2, 2016
                                  Pasadena, California

Before: D.W. NELSON, CALLAHAN, and N.R. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Benjamin and Sara Menjivar appeal from the Bankruptcy Appellate Panel’s

(“BAP”) affirmance of the bankruptcy court’s dismissal of their First Amended

Complaint (“FAC”) for failure to state a claim in an adversary bankruptcy

proceeding. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de

novo the BAP’s decision, Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d

1088, 1090 (9th Cir. 2009), and we AFFIRM.

      The BAP did not err in applying California’s three-year limitations period

for fraud claims, Cal. C. Civ. Proc. § 338(d), to affirm the dismissal with prejudice

of the Menjivars’ claims seeking to invalidate the note and trust deed against their

residence on a theory of fraudulent inducement. Cf. Vess v. Ciba-Geigy Corp.

USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003) (explaining that, where a plaintiff

“allege[s] a unified course of fraudulent conduct and rel[ies] entirely on that course

of conduct as the basis of a claim,” the claim “is said to be ‘grounded in fraud’ or

to ‘sound in fraud’” (citations omitted)).

      The Menjivars assert for the first time on appeal that California’s limitations

period for rescission or unfair business practices claims should be applied to their

state law claims. Because these issues are raised for the first time on appeal, and

because the Menjivars have not identified any “exceptional circumstances” that

would warrant a favorable exercise of our discretion to consider them, we decline


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to do so. Mano–Y & M, Ltd. v. Field (In re Mortgage Store, Inc.), 773 F.3d 990,

998 (9th Cir. 2014). The Menjivars have not pled, and have not indicated a

willingness or ability to plead, facts sufficient to articulate a cognizable claim for

rescission or unfair business practices under California law. As counsel conceded

at oral argument, the FAC does not contain the words “rescission” or “rescind,”

and it nowhere references California Code of Civil Procedure § 337(3) or

California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et

seq. Additionally, the Menjivars never argued before the bankruptcy court or the

BAP that their FAC stated rescission or UCL claims.

      Because we affirm the dismissal of the Menjivars’ claims on other grounds,

we do not reach the issue, also raised by the Menjivars for the first time on appeal,

of Wells Fargo’s ability to assert preemption under the Home Owners’ Loan Act,

12 U.S.C. § 1461 et seq.

      AFFIRMED.




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