FILED

NOT FOR PUBLICATION

DEC 08 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: MORTGAGE ELECTRONIC No. 16-16527

REGISTRATION SYSTEMS, INC.,

Litigation, D.C. No. 2:09-md-02119-JAT ______________________________

NICHOLAS DEBAGGIS; ROSA A. MEMORANDUM*

SILVAS; JONATHAN E. ROBINSON;

SALLY J. ROBINSON-BURKE; EDEL

MOLINA; MARIA HERNANDEZ;

MILAN STEJIC; THOMAS W. BILYEA;

LAURIE S. BILYEA,

Plaintiffs-Appellants,

v.

U.S. BANK, N.A.; BANK OF NEW

YORK MELLON CORP.; WELLS

FARGO BANK, N.A., DBA America’s Servicing Company; BANK OF AMERICA, N.A., DBA BAC Home Loans Servicing, L.P., DBA La Salle Bank, N.A., trustee of Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2006-AR5 Trust; RECONTRUST

COMPANY, N.A.; CENTRAL

MORTGAGE COMPANY; MORTGAGE

ELECTRONIC REGISTRATION

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. SYSTEMS, INC., a subsidiary of MERSCORP, Inc., a Delaware corporation; MERSCORP, INC., a Virginia corporation,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Argued and Submitted November 16, 2017 San Francisco, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON,** District Judge.

Plaintiffs-Appellants seek reversal of the district court's decision granting

summary judgment to Defendants-Appellees. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a district court's summary judgment ruling.

A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1202 (9th Cir.

2016). We affirm.

The district court previously dismissed all claims in Plaintiffs’ Consolidated

Amended Master Complaint (“CAC”). Plaintiffs appealed, and this court upheld

the district court's dismissal on all but one of the claims. In re Mortg. Elec.

** The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. 2 Registration Sys., Inc., 754 F.3d 772 ( 9th Cir. 2014) (hereinafter "MERS I").

Specifically, this court remanded Claim I of the CAC only with respect to its

allegation that Defendants “robosigned (forged)” documents, violating Arizona

Revised Statute § 33-420(A). Id. at 783. The same panel of this court subsequently

clarified that our “reversal of Count I was limited to petitioners' claims of

robosigning and forgery. To the extent petitioners now seek to challenge the MDL

Court's dismissal of Count I as to allegations beyond robosigning and forgery, that

challenge is waived.” Order, Robinson-Burke v. Bank of Am., N.A., No. 16-80001,

at *2 (9th Cir. Mar. 25, 2016) (hereinafter “MERS II”).

Plaintiffs have attempted to open the door to additional claims on remand by

offering definitions of the term “robosigning” that include alleged actions by

Defendants other than “forgery.” As this court previously used the term, however,

“robosigning” referred only to acts related to forgery, not to any acts that might fit

any definition of “robosigning.” See MERS II. We agree with the district court that

this court’s mandate limited the claims under Arizona Revised Statute § 33-420 to

“forgery, including forgery that involves robosigning.”

The discussion throughout MERS I supports that understanding. We

described the relevant claim as being “that these documents were notarized in

blank and ‘robosigned’ with forged signatures.” 754 F.3d at 782. We noted that

3 Plaintiffs sought “damages and declaratory relief against clouding of their title

based on these allegedly forged documents.” Id. In explaining our conclusion that

this claim was pled with sufficient particularity, we quoted Arizona Revised

Statute § 33-420(A), highlighting the word “forged” by putting it in italics, and

proceeded to identify specific allegations in the complaint, all of which related to

documents not actually being signed by the person whose signature appeared on

the documents. Id. at 783. In sum, the only claims that remained after our previous

decision were claims of forgery. Plaintiffs’ allegations of misconduct other than

forgery were previously extinguished.

Plaintiffs have also tried to open the door wider to other claims by using an

overly broad definition of “forgery.” In particular, they argue that even if the

signature on a document was actually applied by the identified signatory, the

document could be described as a “forgery” if it contained a false statement or if

the person who signed the document did not actually possess the interest

purportedly assigned by the document. But that is not “forgery” as the term is

commonly understood or as we used the term in our prior decision.

The term “forgery” and the related term “falsely makes,” in the context of

forgery, have long been held to refer to the execution, not the content, of

documents. Black's Law Dictionary, for instance, defines “forgery” as “[t]he act of

4 fraudulently making a false document or altering a real one to be used as if

genuine.” Forgery, Black's Law Dictionary (10th ed. 2014). Our decision in

Wright v. United States stated a similar understanding:

A falsely made instrument is one that is fictitious, not genuine, or in some material particular something other than it purports to be and without regard to the truth or falsity of the facts stated therein. By the decisive weight of authority, the genuine making of a writing, which contains false or misleading statements is not false making or forgery.

172 F.2d 310, 311 (9th Cir. 1949) (citations omitted)

Arizona law is similar. The district court used a definition of “forgery” taken

from Arizona Revised Statute § 13-2002, which provides that forgery has occurred

if a person, with the intent to defraud, “[f]alsely makes, completes or alters a

written instrument.” Plaintiffs argue that because the definition of “forgery”

includes “falsely makes,” documents that contain falsehoods are forged. But the

term “falsely makes a written instrument” is itself more narrowly defined in

Arizona law as:

to make or draw a complete or incomplete written instrument that purports to be an authentic creation of its ostensible maker but that is not either because the ostensible maker is fictitious, or because, if real, the ostensible maker did not authorize the making or drawing of the written instrument.

Ariz. Rev. Stat. § 13-2001(7). For a document to have been falsely made, it must

purport to be an authentic creation when it is not.

5 This court's remand of the case in MERS I was limited to claims involving

forged documents, meaning claims alleging false representations about a document

itself, not claims alleging falsity in the substance of a document. Plaintiffs

acknowledge that they have not presented any evidence to support the proposition

that any of the relevant documents were fictitious, not genuine, or signed by

persons other than those whose names were listed. In other words, there was no

genuine dispute of material fact on the only claim that survived the previous

appeal. We affirm the district court’s grant of summary judgment against all

Plaintiffs, including DeBaggis.1

AFFIRMED.

1 Because the claims asserted by DeBaggis fail on the merits, even if those claims were properly before the district court, we do not need to resolve the challenge to the district court’s conclusion that DeBaggis was not properly added as a plaintiff to the consolidated actions. 6