                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 21 2013

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




                              FOR THE NINTH CIRCUIT



VIRGILIO ORCILLA; TEODORA                        No. 11-16727
ORCILLA,
                                                 D.C. No. 5:10-cv-03931-HRL
                Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

BANK OF AMERICA, N.A.; et al.,

                Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Northern District of California
                    Howard R. Lloyd, Magistrate Judge, Presiding **

                               Submitted May 14, 2013 ***

Before:         LEAVY, THOMAS, and MURGUIA, Circuit Judges.

       Virgilio and Teodora Orcilla appeal pro se from the district court’s judgment

dismissing their action arising from foreclosure proceedings. We have jurisdiction


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review de novo, Cervantes v. Countrywide Home

Loans, Inc., 656 F.3d 1034, 1040-41 (9th Cir. 2011), and we affirm.

      The district court properly dismissed the Orcillas’ federal breach of contract

claim because the Orcillas were not intended third-party beneficiaries of the

Servicer Participation Agreement. See GECCMC, 2005-C1 Plummer St. Office

L.P. v. JPMorgan Chase Bank, N.A., 671 F.3d 1027, 1033 (9th Cir. 2012) (“Parties

that benefit from a government contract are generally assumed to be incidental

beneficiaries, rather than intended beneficiaries, and so may not enforce the

contract absent a clear intent to the contrary.” (citation and internal quotation

marks omitted)); Klamath Water Users Protective Assoc’n v. Patterson, 204 F.3d

1206, 1211 (9th Cir. 1999) (plain language of government contract was sufficient

to show lack of intent to grant third-party beneficiary rights).

      The district court properly dismissed the Orcillas’ procedural due process

claim because the Orcillas did not have a protected property interest in

modification of their mortgage loan. See Doyle v. City of Medford, 606 F.3d 667,

672 (9th Cir. 2010) (government program granting decision-maker broad

discretion does not create a property interest); see also Bd. of Regents v. Roth, 408

U.S. 564, 569-70 (1972) (procedural protections of due process clause are

triggered only when there is a cognizable liberty or property interest at stake).


                                           2                                    11-16727
        The district court properly dismissed the Orcillas’ Racketeer Influenced and

Corrupt Organizations Act claim because the allegations in their complaint did not

set forth facts demonstrating the requisite pattern of racketeering activity involving

more than one transaction. See Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1535

(9th Cir. 1992) (pattern requires more than one scheme with a “single purpose

which happen[s] to involve more than one act taken to achieve that purpose”).

        The district court did not abuse its discretion by denying the Orcillas leave to

file an amended complaint because amendment would be futile. See Cervantes,

656 F.3d at 1041 (setting forth standard of review).

        The district court did not abuse its discretion in declining to exercise

supplemental jurisdiction over the Orcillas’ state law claims after dismissing their

federal claims. See 28 U.S.C. § 1367(c)(3); Ove v. Gwinn, 264 F.3d 817, 821 (9th

Cir. 2001) (setting forth the standard of review).

        We deny Big Sur, Inc.’s request for judicial notice, filed on December 9,

2011.

        AFFIRMED.




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