                                                                            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                             NOT FOR PUBLICATION                            OCT 21 2014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. 12-35884
FRAZER,
                                                 D.C. No. 3:11-cv-05954-BHS
               Appellants,

  v.                                             MEMORANDUM*

DEUTSCHE BANK NATIONAL TRUST
COMPANY; NORTHWEST TRUSTEE
SERVICES INC.,

               Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                             Submitted October 14, 2014**

Before:        LEAVY, GOULD, and BERZON, Circuit Judges.

       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


          *
             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).
dismissing the Frazers’ adversary proceeding against Northwest Trustee Services

Inc. 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

Northwest Trustee Services Inc. because the Frazers introduced no evidence to

raise a genuine dispute of material fact as to whether appellee violated the duty of

good faith imposed on a trustee. See Trujillo v. Nw. Tr. Servs., Inc., 326 P.3d 768,

774 (Wash. Ct. App. 2014) (“Absent conflicting evidence, the declaration [of a

note holder to a trustee] should be taken as true.”); see also Wash. Rev. Code

§ 61.24.030(7) (authorizing a trustee to rely on a beneficiary declaration as

evidence that a beneficiary is the owner of a note). Contrary to the Frazers’

contention, they had ample time to oppose appellee’s motion for summary

judgment in the bankruptcy court. See Bankr. W.D. Wash. R. 9013-1(d)(2)(D)

(providing at least 28 days between the filing of a summary judgment motion and

the hearing).

       We reject the Frazers’ contentions concerning fraud and collusion among


                                          2                                      12-35884
appellee Northwest Trustee Services Inc., its legal counsel, Deutsche Bank

National Trust Services Company, and Wells Fargo.

      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).

      Northwest Trustee Services Inc.’s motion to take judicial notice of the

extrinsic materials submitted with the Frazers’ opening brief, filed on February 20,

2013, is denied as unnecessary.

      Northwest Trustee Services Inc.’s request that the court permit briefing on

attorney’s fees and costs, set forth in its answering brief, is denied without

prejudice. See Fed. R. App. P. 38 (requiring separately filed motion for damages

and costs on appeal).

      AFFIRMED.




                                           3                                     12-35884
