                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 15 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



DUANE VARBEL,                                    No. 11-17628

               Plaintiff - Appellant,            D.C. No. 2:11-cv-00897-SRB

  v.
                                                 MEMORANDUM *
COUNTRYWIDE HOME LOANS
INCORPORATED; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                            Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Duane Varbel appeals pro se from the district court’s judgment dismissing

his diversity action arising from foreclosure proceedings. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Cervantes v. Countrywide Home


          *
             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).
Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We affirm.

       The district court properly dismissed Varbel’s breach of contract claim

because Varbel did not allege facts showing the existence of a contract between

him and any of the defendants. See Chartone, Inc. v. Bernini, 83 P.3d 1103, 1111

(Ariz. Ct. App. 2004) (an essential element of breach of contract claim is existence

of a contract).

       The district court properly dismissed Varbel’s quiet title claim because

Varbel did not allege facts showing that the loan has been repaid. See Farrell v.

West, 114 P.2d 910, 911 (Ariz. 1941) (where “it appears there is an unsatisfied

balance due to a defendant-mortgagee, or his assignee, the court will not quiet the

title until and unless [plaintiff] pays off such mortgage lien”).

       The district court properly dismissed Varbel’s claim under section § 33-420

of Arizona Revised Statutes because Varbel failed to allege facts showing that

defendants had knowingly recorded a false claim on his property. See Ariz. Rev.

Stat. § 33-420.

       The district court properly dismissed Varbel’s remaining claims related to

the alleged wrongful foreclosure of his property because Varbel does not dispute

that he is in default and he failed to allege facts to dispute the trustee’s statutory

right to foreclose. See Hogan v. Wash. Mut. Bank, N.A., 277 P.3d 781, 784 (Ariz.


                                            2                                      11-17628
2012) (en banc) (note and deed of trust are “distinct instruments that serve different

purposes”; dispositive question is whether trustee had statutory right to foreclose

on deed of trust). In addition, Arizona’s deed of trust statutes impose no obligation

on the beneficiary to “show the note[,]” and the trustee need not comply with

Arizona’s Uniform Commercial Code before commencing a non-judicial

foreclosure. Id. at 783-84.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009) (per curiam).

      AFFIRMED.




                                           3                                      11-17628
