FILED

NOT FOR PUBLICATION

DEC 14 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL ENOS; PAULA ENOS, No. 19-15828

Plaintiffs-Appellants, D.C. No. 3:18-cv-06101-MMC

v.

MEMORANDUM*

U.S. BANK, N.A.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding

Submitted December 10, 2020** San Francisco, California

Before: TALLMAN, MURGUIA, and CHRISTEN, Circuit Judges.

Plaintiffs Michael and Paula Enos appeal the district court’s order granting

defendant U.S. Bank’s motion for judgment on the pleadings. Plaintiffs timely

appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Because the

* 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). parties are familiar with the facts, we recite only those necessary to resolve the

appeal.

“A judgment on the pleadings is properly granted when, taking all the

allegations in the pleadings as true, the moving party is entitled to judgment as a

matter of law.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th

Cir. 2001) (citation omitted). Because Rule 12(b) motions to dismiss and Rule

12(c) motions for judgment on the pleadings are “functionally identical, the same

standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c)

analog.” Dworkin v. Hustler Mag., Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).

Dismissal is warranted if the complaint fails to allege either a “cognizable legal

theory” or “sufficient facts [] under a cognizable legal theory.” Balisteri v.

Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Here, on de novo

review, we affirm the district court’s judgment. See Milne ex rel. Coyne v. Stephen

Slesinger, Inc., 430 F.3d 1036, 1042 (9th Cir. 2005).

1. To prevail on a claim to cancel an instrument pursuant to Cal. Civ. Code

§ 3412, “a plaintiff must prove (1) the instrument is void or voidable due to, for

example, fraud; and (2) there is a reasonable apprehension of serious injury

including pecuniary loss or the prejudicial alteration of one’s position.” U.S. Bank

Nat’l Ass’n v. Naifeh, 205 Cal. Rptr. 3d 120, 128 (Ct. App. 2016) (citation

2 omitted). We conclude the district court did not err by ruling that plaintiffs failed

to allege a cognizable legal theory in support of their claim.

The Deed of Trust named MERS as the beneficiary of the Deed of Trust and

the nominee for the original lender and its assigns. See Lee v. City of Los Angeles,

250 F.3d 668, 688 (9th Cir. 2001) (explaining that a court may consider material

beyond the pleadings without converting the motion to dismiss into a motion for

summary judgment if “the documents’ authenticity is not contested and the

plaintiff’s complaint necessarily relies on them” (citation and internal quotation

marks and alterations omitted)). The Deed of Trust further provided that MERS

had the right to exercise any and all of the interests of the original lender. Under

California law, the Deed of Trust permitted MERS to sell or assign both the

promissory note and the Deed of Trust on behalf of the original lender. See

Fontenot v. Wells Fargo Bank, N.A., 129 Cal. Rptr. 3d 467, 477 (Ct. App. 2011),

disapproved of on other grounds by Yvanova v. New Century Mortg. Corp., 365

P.3d 845, 859 n.13 (Cal. 2016). Accordingly, when MERS executed the

Assignment of Deed of Trust it transferred both the promissory note and the Deed

of Trust to U.S. Bank. U.S. Bank was the beneficiary of the Deed of Trust at the

time of the foreclosure sale and was entitled to purchase the property by credit bid.

See Fontenot, 129 Cal. Rptr. 3d at 477 (“Ordinarily, the owner of a promissory

3 note secured by a deed of trust is designated as the beneficiary of the deed of

trust.” (citing 11 Thompson on Real Property (2d ed. 1998) § 94.02(b)(7)(i), p.

346)); Yvanova, 365 P.3d at 850 (explaining that a trustee may only initiate

foreclosure “at the direction of the person or entity that currently holds the note

and the beneficial interest under the deed of trust”); Cal. Civ. Code. § 2924h(b).

The district court did not err by concluding plaintiffs had not alleged a cognizable

theory underpinning their allegation that the Deed Upon Sale was void for lack of

consideration.

2. Because we conclude the district court did not err by ruling plaintiffs had

not alleged a cognizable legal theory, we do not consider the parties’ arguments

relating to tender and prejudice.

AFFIRMED.

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