                                                                          FILED
                            NOT FOR PUBLICATION                            OCT 17 2013

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



                             FOR THE NINTH CIRCUIT


BEN McINDOE and CHARITI                          No. 12-35416
McINDOE,
                                                 DC No. 2:12 cv-0149 JCC
               Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

JPMORGAN CHASE BANK, N.A.; and
DEUTSCHE BANK NATIONAL TRUST
COMPANY,

               Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                            Submitted October 8, 2013**
                               Seattle, Washington

Before:        TASHIMA, GRABER, and MURGUIA, Circuit Judges.

       After running into financial difficulties, Ben and Chariti McIndoe sought to

modify the terms of their home loan. At that time, Deutsche Bank National Trust

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
Co. (“Deutsche Bank”) held the beneficial interest in the deed of trust, and

JPMorgan Chase Bank, N.A. (“Chase”) acted as the loan servicer.1 After the

modification was denied, Deutsche Bank initiated foreclosure proceedings. The

McIndoes then filed this quiet title action against Deutsche Bank and Chase,

seeking a declaration that the McIndoes are “the rightful holder[s] of title to the

property.” The district court granted a motion to dismiss because the McIndoes

had not alleged that they had paid (or offered to pay) the outstanding balance of the

home loan. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     We review de novo a dismissal for failure to state a claim. Sheppard

v. David Evans & Assoc., 694 F.3d 1045, 1048 (9th Cir. 2012). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotation marks omitted). Under Washington law, a

borrower must fully satisfy (or be able to satisfy) outstanding debt to maintain a

quiet title action. See Littlejohn v. Miller, 31 P. 758, 759 (Wash. 1892) (mortgagor

who had “not . . . at any time offered to pay the balance of said purchase price, and

to satisfy said mortgage debts” cannot maintain quiet title action). Thus, a plaintiff

      1
              The rights and responsibilities that each party has with respect to the
deed of trust, the loan, and the property are all disputed, but, as discussed below,
we need not resolve those disputes.

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cannot “come into a court of equity, and ask the court to quiet their title to the

lands . . . ; [instead] they must have first offered to do equity themselves, by

offering to pay the . . . mortgage debts.” Id. The McIndoes effectively concede

that they have not alleged satisfaction (or the ability to satisfy) the outstanding

obligations of the loan;2 thus, the complaint was properly dismissed.

      2.     The district court did not abuse its discretion in denying leave to

amend the complaint. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d

1034, 1041 (9th Cir. 2011). “[I]n dismissing for failure to state a claim under Rule

12(b)(6), a district court should grant leave to amend even if no request to amend

the pleading was made, unless it determines that the pleading could not possibly be

cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th

Cir. 2000) (en banc) (internal quotation marks omitted). The McIndoes effectively

concede that they have not paid, or offered to pay, the outstanding debt on the loan.

As described above, that admission is fatal to their quiet title action. Thus, because

it would have been futile to amend, it was not an abuse of discretion to decline to

permit leave to amend.



      2
              The McIndoes seem to argue that they satisfied their obligations by
making several timely payments in their efforts to modify the terms of the loan.
But under the cases cited above, the borrower must satisfy (or allege the ability to
satisfy) all outstanding obligations, not simply the requisite monthly payments.

                                          -3-
AFFIRMED.




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