                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JAN 31 2014

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

ANTHONY AND MARIA ADRIAN,                        No. 12-16214

              Plaintiffs-Appellants,             D.C. No. 2:12-CV-00189-PHX-
                                                 FJM
  v.

FEDERAL NATIONAL MORTGAGE                        MEMORANDUM*
ASSOCIATION, MTC FINANCIAL
(d/b/a Trustee Corps), and ONEWEST
BANK, FSB,

              Defendants-Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Frederick J. Martone, District Judge, Presiding

                     Argued and Submitted December 5, 2013
                            San Francisco, California

Before: GOULD and PAEZ, Circuit Judges, and EZRA, District Judge.**

       Appellants Anthony and Maria Adrian (“the Adrians”) appeal the district

court’s dismissal of their claims without granting leave to amend. The Adrians

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
asserted three claims against Defendants Federal National Mortgage Association

(“Fannie Mae”), MTC Financial (d/b/a Trustee Corps) (“Trustee Corps”), and

OneWest Bank, FSB (“OneWest”): (1) wrongful foreclosure, (2) intentional

infliction of emotional distress, and (3) fraud. We have jurisdiction pursuant to 28

U.S.C. 1291. We affirm in part, vacate in part, and remand.

                                          I.

      The Adrians argue that the district court erred in dismissing their claims

without granting them leave to amend. A district court’s denial of leave to amend

the complaint is reviewed for an abuse of discretion. Gardner v. Martino, 563 F.3d

981, 990 (9th Cir. 2009) (citing Westlands Water Dist. v. Firebaugh Canal, 10 F.3d

667, 677 (9th Cir. 1993)). Because the district court did not articulate its reasons

for denying the Adrians leave to amend their claims against Fannie Mae and

OneWest, we review each of the Adrians’ claims de novo to determine whether the

district court abused its discretion in denying leave to amend. DCD Programs, Ltd.

v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); Eminence Capital, LLC v. Aspeon,

Inc., 316 F.3d 1048, 1051–52 (9th Cir. 2003)(per curiam).

      The Adrians first allege a claim of wrongful foreclosure. Arizona state

courts do not recognize a wrongful foreclosure cause of action. See Cervantes v.

Countrywide Home Loans, Inc., 656 F.3d 1034, 1043 (9th Cir. 2011). The Adrians


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attempt to distinguish their wrongful foreclosure claim, but we find their attempts

unavailing. Thus, any amendment to the Adrians’ wrongful foreclosure action

would be futile and the district court did not err in dismissing that claim and

denying leave to amend.

      The Adrians also allege a claim of intentional infliction of emotional

distress. In order to state a claim for intentional infliction of emotional distress

under Arizona law, the Adrians must show that (1) the conduct at issue was

“extreme and outrageous,” (2) the defendants either intended to cause such distress

or recklessly disregarded the likelihood that such distress would occur, and (3)

severe emotional distress did occur. Watts v. Golden Age Nursing Home, 619

P.2d 1032, 1035 (Ariz. 1980). We previously have held that the actions of lenders

in “targeting Plaintiffs for a loan, misrepresenting the terms and conditions of the

loan, negotiating the loan, and closing the loan,” do not rise to the level of

“extreme and outrageous.” Cervantes, 656 F.3d at 1046. Thus, even taking all the

facts alleged as true, any amendment to the Adrians’ intentional infliction of

emotional distress claim would be futile because the alleged conduct of the

defendants does not, as a matter of law, rise to the level of “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized


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community.” Watts, 619 P.2d at 1035. Therefore, the district court did not err in

dismissing that claim and denying leave to amend.

      Finally, the Adrians allege fraud against Fannie Mae and OneWest.

However, they fail to allege any specific conduct of Fannie Mae that would

constitute fraud and merely assert that Fannie Mae was a co-conspirator to

OneWest’s fraudulent actions. Under Arizona law, for a conspiracy action to lie,

“two or more people must agree to accomplish an unlawful purpose or to

accomplish a lawful object by unlawful means, causing damages.” See Wells

Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395

Pension Trust Fund, 38 P.3d 12, 36 (Ariz. 2002). Merely alleging that Fannie Mae

was a co-conspirator is insufficient and the underlying facts demonstrate that any

amendment to the Adrians’ fraud claim against Fannie Mae under a “co-

conspiratory” theory would be futile. Thus, the district court did not err in denying

the Adrians leave to amend that claim.

      The record, however, suggests that the Adrians’ fraud claim against

OneWest could be saved by amendment. The Adrians’ fraud claim against

OneWest, in sum, alleged that OneWest “represented” to Plaintiffs that they must

default on their mortgage before OneWest would modify it, but that OneWest had

no intention of ever modifying the loan. Instead, according to the Adrians,


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OneWest falsely represented to them that they must default, while OneWest “fully

intended on foreclosing on the Property” and sought to obtain loan modification

incentives in the process. Assuming that these allegations are true, it appears that

the Adrians could potentially state a claim for fraud against OneWest. See

Cervantes, 656 F.3d at 1041. At a minimum, it is not clear that an amendment to

their pleadings would be futile. Accordingly, we hold that the district court abused

its discretion in denying the Adrians an opportunity to amend their complaint with

respect to their allegations of fraud against OneWest.

                                       II.

      The Adrians also argue the district court abused its discretion when it

disposed of their claims against Trustee Corps by granting Trustee Corps’s Motion

to Dismiss “summarily” pursuant to Local Rule 7.2(i). The Adrians did not

respond to Trustee Corps’s Motion to Dismiss. Because Local Rule 7.2(i) allows

the district court to dispose of a motion summarily if the party does not serve and

file the required answering memoranda, we hold that the district court did not

abuse its discretion in summarily disposing of Trustee Corps’s Motion to Dismiss

and dismissing the Adrians’ claims against it. See Ghazali v. Moran, 46 F.3d 52,

54 (9th Cir. 1995).




                                         -5-
      We vacate the district court’s judgment of dismissal of the Adrians’ fraud

claim against OneWest and remand to the district court for further proceedings

consistent with this disposition. We affirm the district court’s judgment in all other

respects.


AFFIRMED IN PART, VACATED IN PART, AND REMANDED.


             Each party shall bear its own costs on appeal.




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