Fidel H. Pajarillo v. Countrywide Home Loans, Inc.;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIDEL H. PAJARILLO,
Plaintiff - Appellant,
v.
COUNTRYWIDE HOME LOANS, INC.;
et al.,
Defendants - Appellees.
No. 10-17273
D.C. No. 2:09-cv-00078-LDG-
GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted January 15, 2013**
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Fidel H. Pajarillo appeals pro se from the district court’s order dismissing
his action arising out of foreclosure proceedings. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a district court’s dismissal. King v. California,
FILED
JAN 17 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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784 F.2d 910, 912 (9th Cir. 1986). We affirm in part, and vacate in part, and
remand.
The district court properly dismissed Pajarillo’s state law claims based on
his mortgage being securitized because the claims lacked any legal basis given the
fact that Pajarillo had contractually acknowledged that the interest of the
originating lender in the loan could be transferred. Cf. Cervantes v. Countrywide
Home Loans, Inc., 656 F.3d 1034, 1039 (9th Cir. 2011) (noting that “[i]t has
become common for original lenders to bundle the beneficial interest in individual
loans and sell them to investors as mortgage-backed securities, which may
themselves be traded”).
The district court dismissed Pajarillo’s wrongful foreclosure claim based on
defendant Mortgage Electronic Registration Systems, Inc.’s (“MERS”) initiating
non-judicial foreclosure proceedings. After the district court’s dismissal order, the
Nevada Supreme Court decided Edelstein v. Bank of N.Y. Mellon, 286 P.3d 249
(Nev. 2012). Although the foreclosure statute discussed in Edelstein differs from
the one at issue here, the Nevada Supreme Court discussed the effects of MERS’s
designation as the beneficiary on the deed of trust. See id. at 252 (“We conclude
that when MERS is the named beneficiary and a different entity holds the
promissory note, the note and the deed of trust are split, making nonjudicial

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foreclosure by either improper.”); see also Cervantes, 656 F.3d at 1044 (9th Cir.
2011) (noting that “[t]he legality of MERS’s role as a beneficiary may be at issue
where MERS initiates foreclosure in its own name”). Since the district court did
not have the benefit of Edelstein when it issued its order of dismissal, we remand
to allow the court to reconsider Pajarillo’s wrongful foreclosure claim in light of
that opinion.
Pajarillo’s contentions that the district court should have abstained from
exercising jurisdiction over the case and that it applied the wrong pleading
standard are unpersuasive.
Each party shall bear its own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.

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