David A. Philip v. Bac Home Loans Servicing, Lp;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID A. PHILIP,
Plaintiff - Appellant,
v.
BAC HOME LOANS SERVICING, LP; et
al.,
Defendants - Appellees.
No. 12-16155
D.C. No. 2:11-cv-01499-JCM-
PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
David A. Philip appeals pro se from the district court’s judgment dismissing
his action alleging federal and state law claims related to the ongoing foreclosure
of his property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
FILED
MAR 03 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 4 --

a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6).
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011).
We affirm.
The district court properly dismissed Philip’s wrongful foreclosure and quiet
title claims because Philip did not allege facts sufficient to show that he was not in
default on his loan or that defendants exercised the power of sale. See Breliant v.
Preferred Equities Corp., 918 P.2d 314, 318 (Nev. 1996) (per curiam) (“In a quiet
title action, the burden of proof rests with the plaintiff to prove good title in
himself.”); Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev.
1983) (wrongful foreclosure claim requires allegations that a lender exercised the
power of sale and foreclosed upon property when no failure of performance existed
on the part of the borrower).
The district court properly dismissed Philip’s slander of title claim because
Philips failed to allege sufficient facts to show a false statement regarding the title
to his property. See Exec. Mgmt., Ltd. v. Ticor Title Ins. Co., 963 P.2d 465, 478
(1998) (“Slander of title involves false and malicious communications disparaging
to one’s title in land, and causing special damage.” (internal quotation marks
omitted)).
The district court properly dismissed Philip’s civil conspiracy claim after
12-16155 2

-- 2 of 4 --

dismissing the underlying causes of action. See, e.g., Eikelberger v. Tolotti, 611
P.2d 1086, 1088 (Nev. 1980) (conspiracy action for damages generally must be
based on a viable, independent cause of action).
Philip lacks standing to enforce the terms of any pooling and service
agreement and therefore cannot challenge any assignment into a securitized trust.
See Wood v. Germann, 331 P.3d 859, 861-62 (Nev. 2014) (per curiam)
(“[A]ppellant, who is neither a party nor an intended third-party beneficiary of the
[pooling and servicing agreement], lacked standing to challenge the assignment’s
validity.”). We reject Philip’s contention that the securitization of his loan
rendered his note or deed of trust fraudulent.
Philip’s contentions that defendants lack standing to pursue foreclosure, and
that the assignment transferring the interest in the promissory note and deed of
trust are invalid, in part because of the use of Mortgage Electronic Registration
Systems, Inc. (“MERS”) as the beneficiary of the deed of trust and lender’s
nominee, are foreclosed by Edelstein v. Bank of New York. Mellon, 286 P.3d 249
(Nev. 2012) (en banc). See id. at 259-60, 262 (MERS may properly act as
beneficiary of a trust deed, separating the instruments does not permanently bar
foreclosure, and an entity has authority to pursue foreclosure when it is entitled to
enforce both the deed of trust and the note).
12-16155 3

-- 3 of 4 --

We reject Philip’s contentions that he was improperly denied discovery, that
the district court was biased, and that the district court made improper findings of
fact.
AFFIRMED.
12-16155 4

-- 4 of 4 --