TRACEE ELIZABETH McKINNEY v. BANK OF AMERICA, N.A.; ELIZABETH COURTNEY FARRELL, Lead Attorney

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACEE ELIZABETH McKINNEY,
Plaintiff-Appellant,
v.
BANK OF AMERICA, N.A.; ELIZABETH
COURTNEY FARRELL, Lead Attorney,
Defendants-Appellees.
No. 17-55181
D.C. No. 3:15-cv-00442-JAH-KSC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Tracee Elizabeth McKinney appeals pro se from the district court’s
judgment dismissing her action alleging federal and state law claims related to her
home mortgage loan. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Knievel v.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We may affirm on any basis
supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,
1121 (9th Cir. 2008). We affirm.
The district court properly dismissed McKinney’s rescission claims because
McKinney failed to allege facts sufficient to state plausible claims for relief. See
Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings
are liberally construed, a plaintiff must still present factual allegations sufficient to
state a plausible claim for relief); see also 12 C.F.R. § 226.20(a)(4) (loan
modifications are exempt from Truth in Lending Act disclosure requirements); Cal.
Civ. Code § 1217 (“An unrecorded instrument is valid as between the parties
thereto and those who have notice thereof.”); Scott v. JPMorgan Chase Bank, N.A.,
154 Cal. Rptr. 3d 394, 405 n.4 (Ct. App. 2013) (no legal authority to support the
proposition that the absence of a notarization record renders an assignment void).
The district court did not abuse its discretion by dismissing McKinney’s
second amended complaint because McKinney failed to include a demand for
relief. See Fed. R. Civ. P. 8(a)(3) (pleading must contain “a demand for the relief
sought”); McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (setting forth
standard of review).

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The district court did not abuse its discretion by denying McKinney leave to
file a fifth amended complaint because further amendment would be futile. See
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)
(setting forth standard of review and explaining that dismissal without leave to
amend is proper when amendment would be futile).
The district court did not abuse its discretion by denying McKinney’s
request for default judgment because defendants filed a timely motion to dismiss.
See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth standard
of review and factors for determining whether to enter default judgment).
The district court did not abuse its discretion by denying McKinney’s
motion for a preliminary injunction because McKinney failed to establish a
likelihood of success on the merits. See Flexible Lifeline Sys., Inc. v. Precision
Lift, Inc., 654 F.3d 989, 993-94 (9th Cir. 2011) (setting forth standard of review
and factors for a preliminary injunction).
The district court did not abuse its discretion by denying McKinney’s
motion to appoint counsel because McKinney failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and exceptional circumstances requirement for

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appointment of counsel).
Denial of McKinney’s motions for reconsideration was not an abuse of
discretion because McKinney failed to demonstrate any basis for reconsideration.
See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
(9th Cir. 1993) (setting forth standard of review and grounds for reconsideration
under Fed. R. Civ. P. 59(e)); see also Am. Ironworks & Erectors, Inc. v. N. Am.
Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) (a motion for reconsideration
filed within ten days of entry of judgment is treated as a motion to alter or amend
judgment under Fed. R. Civ. P. 59(e)).
We reject as unsupported by the record McKinney’s contention that the
district court erred by taking judicial notice of the deed of trust.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
McKinney’s motion to strike the answering brief (Docket Entry No. 14) is
denied.
AFFIRMED.

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