                                                                              FILED
                           NOT FOR PUBLICATION                                APR 30 2015

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



                            FOR THE NINTH CIRCUIT


KIM CARSON; JIM CARSON,                          No. 13-15368
individuals,
                                                 D.C. No. 2:12-cv-01487-MCE-
              Plaintiffs - Appellants,           CMK

  v.
                                                 MEMORANDUM*
BANK OF AMERICA NA,

              Defendant - Appellee.


                  Appeal from the United States District Court
                      for the Eastern District of California
             Morrison C. England, Jr., Chief District Judge, Presiding

                       Argued and Submitted April 17, 2015
                            San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and GLEASON,***
District Judge.



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       ***
             The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
      Kim and Jim Carson appeal the district court’s judgment dismissing their

action against Bank of America (“BOA”) arising out of foreclosure proceedings as

to two of their properties (“Willow Property” and “Connecticut Property,”

respectively). We have jurisdiction under 28 U.S.C. § 1291. We review the

dismissal de novo. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,

1040 (9th Cir. 2011). We may affirm on any ground supported by the record,

Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm.1

      1.     Upon the Carsons’ default, BOA had statutory authority to initiate

nonjudicial foreclosure proceedings. See Cal. Civ. Code § 2924(a)(1). Although

the Carsons argue they failed to receive proper foreclosure and arrearage notice

from BOA, their argument is without support in the record and contrary to

California statutory law. California Civil Code § 2924(c) contains a conclusive

presumption with regard to notices and regularity of the foreclosure procedure.

According to the statute, if the trustee’s deed recites that all statutory notice



      1
              BOA requests that we take judicial notice of documents related to
another case before the same California district court involving the Carsons. The
documents are a matter of public record. We may take judicial notice of matters of
public record in addition to documents referenced in the complaint, documents
upon which the claim necessarily relies, and documents whose authenticity is not
questioned. See Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001). We
decline to take judicial notice of the requested documents, because the documents
are not relevant or necessary to the determination of this case.
                                            2
requirements and procedures required by law as to the foreclosure have been

satisfied, the deed shall constitute prima facie evidence of compliance with these

requirements and conclusive evidence in favor of a bona fide purchaser. Cal. Civ.

Code § 2924(c); Melendrez v. D & I Inv., Inc., 26 Cal. Rptr. 3d 413, 430 (Ct. App.

2005) (finding a “nonjudicial foreclosure sale is accompanied by a common law

presumption that it was conducted regularly and fairly” (internal quotation marks

omitted)). The Carsons do not plead deficiency as to the trustee’s deed. Therefore,

BOA is statutorily presumed to have complied with all foreclosure requirements

(including notice requirements). Additionally, the Carsons failed to plead any facts

demonstrating they requested in writing information from BOA as to their

arrearage amount. See Cal. Civ. Code § 2924c(b)(1) (“[u]pon your written request,

the [lender] will give you a written itemization of the entire amount you must pay”

(emphasis added)).

      2.     The tender rule does not displace a debtor’s statutory right to reinstate.

Rather, the tender rule applies when the statutory time for a defaulted borrower to

reinstate the property expires. Under California law, a defaulted borrower may

reinstate a loan by tendering the arrearage, plus late and attorney fees, up until five

business days before a scheduled trustee’s sale. § 2924c(a)(1), (e). Once the

Section 2924c time for reinstatement has passed, the tender rule allows a defaulted


                                           3
borrower to avoid loss of the property by tendering the entire outstanding loan

balance at any time prior to the sale. Cal. Civ. Code §§ 2903, 2905; see also Lona

v. Citibank, N.A., 134 Cal. Rptr. 3d 622, 631-32 (Ct. App. 2011); Moeller v. Lien,

30 Cal. Rptr. 2d 777, 782-83 (Ct. App. 1994).

      The Carsons do not allege they availed themselves of any of the statutory

safeguards and protections available to debtors prior to the lapse of the

reinstatement period. See Cal. Civ. Code §§ 2924 through 2924l. Additionally,

the Carsons failed to plead facts demonstrating that they unconditionally and

unambiguously offered to pay, or paid, the full reinstatement amount as to either

property during the Section 2924 reinstatement period (five business days prior to

the date of sale). Indeed, the Carsons do not allege they made any offer of

payment as to the Willow Property. As to the Connecticut Property, the Carsons

admit they did not send payment until the day of sale. On the day of the sale, the

amount tendered by the Carsons was wholly insufficient as a tender of the full

amount of BOA’s secured debt.

      Contrary to the Carsons’ argument at oral argument, we have not found any

binding precedent that would have us reach a different conclusion. The Carsons’

reliance on Susilo v. Wells Fargo Bank, N.A., 796 F. Supp. 2d 1177, 1186 (C.D.

Cal. 2011) does not save their argument. Susilo is not binding authority, and the


                                          4
facts indicate that Susilo requested, in writing, her reinstatement amount from her

lender. Id. at 1184 (Susilo’s accountant received Susilo’s authorization letter and

delivered it along with a written request for any reinstatement amount and

instructions on where to deliver such funds). The Carsons do not allege they sent a

written request for information as to their arrearage amount that was subsequently

ignored by BOA.

      3.     The Carsons failed to argue breach of contract, promissory estoppel,

fraud, or a violation of Cal. Bus. & Prof. Code § 17200 on appeal, therefore those

issues are waived. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)

(per curiam) (noting we do not consider matters not specifically and distinctly

raised and argued in the opening brief). Given this waiver, the Carsons’ reliance

on West. v. JP Morgan Chase Bank, N.A., 154 Cal. Rptr. 3d 285, 298 (Ct. App.

2013) is unavailing. In West, the court found that the lender was required to offer

West a permanent loan modification (under the Home Affordable Mortgage

Program “HAMP” proviso imposed by U.S. Department of Treasury). Id. at 297-

300. The court found that the modification plan under HAMP, entered into by

West and the Lender, constituted a new binding contract. Id. Accordingly, the

court found West had pleaded sufficient facts to go forward on claims of breach of

contract and promissory estoppel. Id. at 300, 304-05.


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AFFIRMED.




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