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FILED

JUN 05 2018

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NC-17-1217-FBTa

)

JAMES AMAR SINGH, ) Bk. No. 4:15-bk-40917

)

Debtor. ) Adv. Pro. 4:16-ap-04026

_____________________________ )

)

JAMES AMAR SINGH, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

WELLS FARGO BANK, N.A., )

)

Appellee. )

______________________________)

Argued and Submitted on May 25, 2018

at San Francisco, California

Filed – June 5, 2018

Appeal from the United States Bankruptcy Court

for the Northern District of California

Honorable William J. Lafferty, Bankruptcy Judge, Presiding

 

Appearances: Appellant James Amar Singh, pro se, on the brief;

James Z. Margolis argued on behalf of appellant;

Robert Collings Little of Anglin Flewelling

Rasmussen Campbell & Trytten LLP argued for

appellee Wells Fargo Bank, N.A.

 

Before: FARIS, BRAND, and TAYLOR, Bankruptcy Judges.

* This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have, see Fed. R. App. P. 32.1, it has no precedential value, see

9th Cir. BAP Rule 8024-1.
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INTRODUCTION

Appellant James Amar Singh’s nine-year quest to stave off

foreclosure of his home has engendered at least ten bankruptcy

cases and four lawsuits. In this latest iteration, Mr. Singh

sought chapter 131 bankruptcy protection and filed an adversary

proceeding against appellee Wells Fargo Bank, N.A. (“Wells

Fargo”), seeking a declaration that Wells Fargo lacked any rights

in his real property due to an earlier foreclosure that a state

court jury found to be improper. In a thoroughly reasoned

decision, the bankruptcy court granted Wells Fargo’s motion to

dismiss the adversary proceeding with prejudice.

On appeal, Mr. Singh largely ignores the bankruptcy court’s

analysis and continues to insist, incorrectly, that the jury

verdict in his favor permanently bars Wells Fargo’s interest in

his property. We AFFIRM. 

FACTUAL BACKGROUND

A. Prelitigation events

In January 2006, Mr. Singh obtained a $500,000 loan from

Wells Fargo’s predecessor, which was secured by a deed of trust

encumbering his residential real property located in Oakland,

California (the “Property”). (We will refer to Wells Fargo and

its predecessors collectively as “Wells Fargo.”) Mr. Singh

defaulted on the loan in December 2009, and Wells Fargo recorded

a notice of default. The foreclosure sale of the Property was

1 Unless specified otherwise, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all

“Rule” references are to the Federal Rules of Bankruptcy

Procedure, and all “Civil Rule” references are to the Federal

Rules of Civil Procedure.

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scheduled for August 8, 2010.

B. State and federal litigation

In the span of five years, Mr. Singh initiated ten

bankruptcy cases, most of which were quickly dismissed for

failure to file documents. He filed his first petition on

August 5, 2010, which stayed the pending foreclosure sale and

allowed him to begin prosecuting his string of civil cases.

1. The first lawsuit

In October 2011, Mr. Singh filed suit (the “First Lawsuit”)

in state court against Wells Fargo to challenge the foreclosure. 

He asserted six causes of action: (1) elder financial abuse,

(2) wrongful foreclosure, (3) breach of contract, (4) intentional

infliction of emotional distress, (5) violation of business and

professions code, and (6) quiet title. Wells Fargo removed the

First Lawsuit to federal district court. After the district

court denied Mr. Singh’s motion for an injunction barring Wells

Fargo from conducting a foreclosure sale, Mr. Singh voluntarily

dismissed the First Lawsuit pursuant to Civil Rule 41(a). 

In July 2012, Wells Fargo purchased the Property at a

foreclosure sale and recorded a trustee’s deed upon sale

(“Trustee’s Deed”). Mr. Singh contends that the foreclosure sale

was invalid. He claims that the sale was cancelled when the

auctioneer received copies of Mr. Singh’s eighth bankruptcy

petition that was filed earlier that day. (Mr. Singh had filed

four bankruptcy petitions in the year preceding the foreclosure

sale.) Mr. Singh claims that, nevertheless, Wells Fargo

“illegally” purchased the Property after all other bidders had

left.

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2. The second lawsuit

In December 2012, Mr. Singh filed another lawsuit (the

“Second Lawsuit”) against Wells Fargo in state court. He alleged

seven causes of action: (1) quiet title, (2) declaratory relief,

(3) preliminary and permanent injunction, (4) cancellation of

instruments, (5) wrongful foreclosure, (6) unjust enrichment, and

(7) fraud. 

Wells Fargo again removed the case to the federal district

court. The district court dismissed Mr. Singh’s complaint

without leave to amend for failure to state a claim upon which

relief could be granted. Mr. Singh appealed the decision to the

Ninth Circuit Court of Appeals, which affirmed the dismissal in

December 2016.

3. The unlawful detainer action

Following the foreclosure sale, Wells Fargo filed an

unlawful detainer action (the “Unlawful Detainer Action”) in

state court. Mr. Singh apparently challenged the propriety of

the sale on grounds that the record does not disclose. A jury

determined that Wells Fargo did not purchase the Property “at a

properly conducted trustee sale” and that Wells Fargo “shall take

nothing by [its] Complaint” (the “Unlawful Detainer Judgment”).

Wells Fargo then recorded a notice of rescission of the

Trustee’s Deed (“Notice of Rescission”) as a first step toward a

second foreclosure sale. 

4. The third lawsuit

In March 2015, Mr. Singh filed yet another lawsuit (the

“Third Lawsuit”) in state court, alleging that Wells Fargo had no

right to resume the foreclosure process because the Unlawful

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Detainer Judgment had claim preclusive effect. He asserted

claims for: (1) conversion, (2) slander of title, (3) fraud,

(4) infliction of emotional distress, (5) elder abuse,

(6) declaratory relief, and (7) preliminary and permanent

injunction. He alleged that he owned the Property free and clear

of Wells Fargo’s encumbrances. After Wells Fargo removed the

Third Lawsuit to federal district court, Mr. Singh voluntarily

dismissed it.

C. The chapter 13 bankruptcy case and adversary proceeding

Also in March 2015, Mr. Singh filed the underlying

chapter 13 bankruptcy case. This was his tenth bankruptcy

filing. 

Mr. Singh initiated an adversary proceeding against Wells

Fargo, alleging that the Unlawful Detainer Judgment conclusively

established that Wells Fargo had no right to record the Trustee’s

Deed following the July 2012 foreclosure sale and, therefore, had

no right to pursue further foreclosure actions. He also alleged

that Wells Fargo did not properly rescind the Trustee’s Deed. 

The amended adversary complaint asserted nine causes of action:

(1) injunctive relief, (2) declaratory relief, (3) turnover of

unlawfully conveyed real property, (4) slander of title,

(5) financial elder abuse fraud, (6) quiet title, (7) fraud,

malice, and oppression, (8) violation of business and professions

code section 17200, and (9) accounting.

D. The motion to dismiss

Wells Fargo moved to dismiss the adversary proceeding under

Civil Rule 12(b)(6), made applicable to bankruptcy by Rule

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7012(b) (“Motion to Dismiss”).2 It argued that the complaint

failed to state a claim upon which relief could be granted

because, among other things, Mr. Singh voluntarily dismissed

similar claims twice before in the First and Third Lawsuits,

which barred further adjudication under Civil Rule 41(a)(1)(B),

made applicable in bankruptcy by Rule 7041; he failed to make a

valid tender of the outstanding debt, thereby precluding

equitable relief; the Unlawful Detainer Judgment did not preclude

Wells Fargo from continuing its foreclosure efforts; and the

Notice of Rescission was proper.

In response, Mr. Singh argued that Wells Fargo “stole [his]

Property through a fraudulent sale” and filed “a Bogus Notice of

Rescission of Trustee’s Deed Upon Sale[.]” He argued that claim

preclusion did not apply to the slander of title claim, which he

alleged for the first time in the adversary complaint. In the

alternative, he asked that the bankruptcy court allow him leave

to amend the complaint.

At the hearing on the Motion to Dismiss, counsel for Wells

Fargo reminded the court that, in the time that the Motion to

Dismiss was pending, the Ninth Circuit affirmed the district

court’s dismissal of the Second Lawsuit; as a result, claim

preclusion barred relitigation of the claims raised in the Second

Lawsuit. In response, Mr. Singh’s counsel argued briefly that

claim preclusion was inapplicable because “the matters that we’re

2 The bankruptcy court dismissed the underlying bankruptcy

case in May 2016 but retained jurisdiction over the adversary

proceeding. Mr. Singh later filed his eleventh bankruptcy

petition in April 2018.

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raising in this case are matters that came about after [the

Unlawful Detainer Judgment].” 

Following the hearing, the bankruptcy court issued its Order

Granting Motion to Dismiss First Amended Complaint (“Dismissal

Order”).

First, the bankruptcy court held that claim preclusion

applied to all of the causes of action except the quiet title

claim, “because the Second Lawsuit was fully adjudicated

adversely to the Plaintiff by both the District Court and the

United States Court of Appeals for the Ninth Circuit . . . and

contained claims based on the same underlying facts as alleged in

the [adversary complaint].”

Second, the bankruptcy court held that the “Two Dismissal

Rule” of Civil Rule 41(a)(1)(B) barred relitigation of the claims

previously asserted (and dismissed) in the First and Third

Lawsuits.

Third, the bankruptcy court held that Mr. Singh’s failure to

tender payment of the debt mandated dismissal of the equitable

claims - injunctive relief, declaratory relief, quiet title,

unfair competition, and accounting.

Finally, the bankruptcy court considered the merits of the

individual claims and determined that none stated a claim upon

which relief could be granted. The bankruptcy court therefore

dismissed the adversary complaint with prejudice.

Mr. Singh timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C.

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§ 158.

ISSUE

Whether the bankruptcy court erred in dismissing the

complaint without leave to amend.

STANDARDS OF REVIEW

We review de novo a bankruptcy court’s decision to grant a

motion to dismiss a complaint under Civil Rule 12(b)(6). See

Barnes v. Belice (In re Belice), 461 B.R. 564, 572 (9th Cir. BAP

2011). De novo review is independent and gives no deference to

the trial court’s conclusion. Roth v. Educ. Credit Mgmt. Agency

(In re Roth), 490 B.R. 908, 915 (9th Cir. BAP 2013).

A decision to dismiss a complaint without leave to amend and

with prejudice is reviewed for abuse of discretion. See Tracht

Gut, LLC v. L.A. Cty. Treasurer & Tax Collector (In re Tracht

Gut, LLC), 836 F.3d 1146, 1150 (9th Cir. 2016). To determine

whether the bankruptcy court has abused its discretion, we

conduct a two-step inquiry: (1) we review de novo whether the

bankruptcy court “identified the correct legal rule to apply to

the relief requested” and (2) if it did, whether the bankruptcy

court’s application of the legal standard was illogical,

implausible, or without support in inferences that may be drawn

from the facts in the record. United States v. Hinkson, 585 F.3d

1247, 1262–63 & n.21 (9th Cir. 2009) (en banc).

DISCUSSION

A. Civil Rule 12(b)(6) requires Mr. Singh to state a claim upon

which relief can be granted.

Under Civil Rule 12(b)(6), a court must dismiss a complaint

if it fails to state a claim upon which relief can be granted. 

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To survive a motion to dismiss, the plaintiff must allege “enough

facts to state a claim to relief that is plausible on its face.” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is

facially plausible when the plaintiff pleads facts that “allow[ ]

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citation omitted). While courts do not require

“heightened fact pleading of specifics,” a plaintiff must allege

facts sufficient to “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555, 570.

In deciding whether the complaint states a claim upon which

relief can be granted, the court accepts the allegations as true

and draws all reasonable inferences in favor of the plaintiff. 

See Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). 

But the court is not required to accept as true “allegations that

are merely conclusory, unwarranted deductions of fact, or

unreasonable inferences.” In re Gilead Scis. Sec. Litig.,

536 F.3d 1049, 1055 (9th Cir. 2008).

B. Mr. Singh’s basic argument – that the Unlawful Detainer

Judgment destroyed Wells Fargo’s deed of trust – is wrong.

The crux of Mr. Singh’s arguments on appeal is that the

Unlawful Detainer Judgment stripped Wells Fargo of its rights in

the Property and precludes it from taking any further action to

foreclose on the Property. He is mistaken. 

Mr. Singh argues that Wells Fargo lacks the authority to

foreclose on the Property “because Wells Fargo lost the unlawful

detainer action[.]” He also contends that the claims that rely

on the wrongful foreclosure claims (such as the elder abuse

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claim, quiet title claim, and slander of title claim) should have

survived the Motion to Dismiss for the same reason. 

But Mr. Singh’s position rests on a false premise: that the

Unlawful Detainer Judgment extinguished Wells Fargo’s rights in

the Property. The jury’s finding that a procedural deficiency

voided the July 2012 foreclosure sale does not mean that Wells

Fargo is forever barred from conducting a proper foreclosure. 

Therefore, all of the claims that rely on his wrongful

foreclosure argument necessarily fail.3 

Similarly, Mr. Singh contends that the bankruptcy court

erred because the Unlawful Detainer Judgment should have been

given claim preclusive effect in his favor. But the jury only

found that the July 2012 foreclosure sale was defective. The

Unlawful Detainer Judgment does not provide, for example, that

Mr. Singh is entitled to a judgment quieting title in him free of

the deed of trust. It has a more narrow effect than Mr. Singh

believes and does not support his claims in the adversary

proceeding.4 The Ninth Circuit was similarly unswayed by this

argument in deciding the appeal of the judgment in the Second

3 Perhaps relatedly, Mr. Singh argues that Wells Fargo could

not foreclose because it violated the conditions precedent to a

foreclosure under the deed of trust. It is not clear that he

made this argument in the bankruptcy court; if he did not, the

argument is waived. But even if he did, he does not explain this

argument. He cites a lengthy paragraph purportedly from the deed

of trust but does not state how Wells Fargo allegedly violated

it. We can discern no error based on this argument.

4 In his reply brief, Mr. Singh complains that Wells Fargo

refused to agree to a loan modification. He offers no authority

for the proposition that Wells Fargo had any legal obligation to

modify the terms of the loan.

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Lawsuit, stating that it “reject[s] without merit . . . Singh’s

contentions regarding . . . the preclusive effect of the parties’

state unlawful detainer action.” We are bound by the Ninth

Circuit’s rejection of Mr. Singh’s preclusion arguments.

In short, Wells Fargo’s errors in its first attempt to

foreclose do not entitle Mr. Singh to a free house.

C. Mr. Singh fails to address the majority of the bankruptcy

court’s Dismissal Order. 

Mr. Singh utterly fails to address the bankruptcy court’s

major reasons for dismissing his complaint. As such, those

arguments are waived. See Padgett v. Wright, 587 F.3d 983, 986

n.2 (9th Cir. 2009) (per curiam) (an appellate court “will not

ordinarily consider matters on appeal that are not specifically

and distinctly raised and argued in appellant’s opening brief”);

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n

appeal, arguments not raised by a party in its opening brief are

deemed waived.”); Greenwood v. Fed. Aviation Admin., 28 F.3d 971,

977 (9th Cir. 1994) (“We will not manufacture arguments for an

appellant, and a bare assertion does not preserve a claim

. . . .”). While we liberally construe a pro se debtor’s

appellate brief, see Nordeen v. Bank of Am., N.A. (In re

Nordeen), 495 B.R. 468, 483 (9th Cir. BAP 2013), we will not

question the parts of the bankruptcy court’s decision that

Mr. Singh does not even discuss.

1. Mr. Singh does not challenge the court’s ruling that

claim preclusion barred relitigation of all claims

except for the quiet title claim.

Mr. Singh ignores the bankruptcy court’s first reason for

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dismissal: that claim preclusion5 barred relitigation of the

claims raised in the Second Lawsuit (other than the quiet title

claim).

Under California law, claim preclusion “prevents

relitigation of the same cause of action in a second suit between

the same parties or parties in privity with them.” Mycogen Corp.

v. Monsanto Co., 28 Cal. 4th 888, 896 (2002). Claim preclusion

requires that: (1) the second lawsuit must involve the same

“cause of action” as the first lawsuit; (2) the first lawsuit

must have resulted in a final judgment on the merits; and (3) the

party to be precluded must have been a party, or in privity with

a party, to the first lawsuit. See San Diego Police Officers’

Ass’n v. San Diego City Emps.’ Ret. Sys., 568 F.3d 725, 734 (9th

Cir. 2008). Courts may inquire into fairness and public policy

before applying the doctrine of claim preclusion, but that

inquiry is not mandatory. See Roberts v. Andrews Family

Revocable Tr. (In re Andrews), BAP No. EC-13-1385-JuTaKu, 2014 WL

2547808, at *8 (9th Cir. BAP June 5, 2014), aff’d, 668 F. App’x

757 (9th Cir. 2016) (citing Kopp v. Fair Political Practices

Comm’n, 11 Cal. 4th 607, 620–22 (1995)).

First, Wells Fargo established an identity of claims between

the adversary proceeding and the Second Lawsuit. California

courts employ the “primary rights theory” to determine if two

5 Although the parties use the term “res judicata,” we

employ the term “claim preclusion,” which has “supplanted the

term ‘res judicata’ that was traditionally used in a

now-obsolete, non-generic sense . . . .” The Alary Corp. v. Sims

(In re Associated Vintage Grp., Inc.), 283 B.R. 549, 555 (9th

Cir. BAP 2002).

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actions constitute a single cause of action. “[A] ‘cause of

action’ under the primary rights theory considers the broader

question of the injury or harm suffered. ‘The most salient

characteristic of a primary right is that it is indivisible: the

violation of a single primary right gives rise to but a single

cause of action.’” Id. at *9 (quoting Mycogen Corp., 28 Cal. 4th

at 904). Therefore, “[i]f an action involves the same injury to

the plaintiff and the same wrong by the defendant then the same

primary right is at stake even if in the second suit, the

plaintiff pleads different theories of recovery, seeks different

forms of relief and/or adds new facts supporting recovery.” Id.

(quoting Eichman v. Fotomat Corp., 147 Cal. App. 3d 1170, 1174

(1983)); see Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d

708, 714 (9th Cir. 2001) (“The central criterion in determining

whether there is an identity of claims between the first and

second adjudications is ‘whether the two suits arise out of the

same transactional nucleus of facts.’” (citations omitted)).

The bankruptcy court examined the claims adjudicated in the

Second Lawsuit and determined that they were identical to the

claims raised in the adversary proceeding, except for the quiet

title claim. The only change between the Second Lawsuit and the

adversary complaint was the Unlawful Detainer Judgment;

therefore, “any cause of action that relies on facts surrounding

the UD Lawsuit and Judgment[] would not be barred by the doctrine

of claim preclusion because it does not rely on the same

operative nucleus of facts.” We discern no error in the

bankruptcy court’s careful comparison of the various claims.

Second, there is no dispute that the Second Lawsuit resulted

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in a final judgment on the merits. 

Third, Mr. Singh was the prosecuting party in both the

Second Lawsuit and the adversary proceeding. 

Accordingly, the bankruptcy court correctly decided that all

of the claims raised in the adversary proceeding (except for the

quiet title claim) are barred by claim preclusion.

2. Mr. Singh does not challenge dismissal based on the

two-dismissal rule.

Similarly, the bankruptcy court correctly dismissed the

slander of title claim, injunctive relief claim, fraud claim, and

elder abuse claim because Mr. Singh had voluntarily dismissed

those claims twice before.

Under Civil Rule 41(a)(1)(B), “if the plaintiff previously

dismissed any federal- or state-court action based on or

including the same claim, a notice of dismissal operates as an

adjudication on the merits.” This “two-dismissal rule” provides

that “a voluntary dismissal of a second action operates as a

dismissal on the merits if the plaintiff has previously dismissed

an action involving the same claims.” Commercial Space Mgmt. Co.

v. Boeing Co., 193 F.3d 1074, 1076 (9th Cir. 1999).

The bankruptcy court correctly held that the two-dismissal

rule barred those claims that Mr. Singh voluntarily dismissed in

the First and Third Lawsuits.6 Mr. Singh does not address this

6 Although Mr. Singh gave different titles to the causes of

action in the First and Third Lawsuits, the bankruptcy court

properly determined that the claims arose out of the “same

transactional nucleus of facts.” For example, Mr. Singh asserted

claims in the Third Lawsuit for slander of title and fraud, which

(continued...)

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reason for dismissal on appeal or discuss how the bankruptcy

court erred. 

3. Mr. Singh fails to address many of the discrete reasons

for dismissal. 

Mr. Singh largely fails to argue that the bankruptcy court

erred in analyzing the individual causes of action. He

completely ignores the court’s reasons for dismissing: (1) First

Cause of Action: Injunctive Relief; (2) Second Cause of Action:

Declaratory Relief; (3) Third Cause of Action: Turnover of

Property; (4) Seventh Cause of Action: Fraud; (5) Eighth Cause of

Action: Violation of Business and Professions Code 17200; and

(6) Ninth Cause of Action: Accounting. Accordingly, he has

waived these issues on appeal.

4. Mr. Singh did not explain how the bankruptcy court

erred by denying leave to amend.

Mr. Singh also fails to discuss the bankruptcy court’s

decision to dismiss his complaint without leave to amend.

The Ninth Circuit instructs that we must “consider five

factors in assessing whether a district court abuses its

discretion in dismissing a complaint without leave to amend: ‘bad

faith, undue delay, prejudice to the opposing party, futility of

amendment, and whether the plaintiff has previously amended the

complaint.’” Ecological Rights Found. v. Pac. Gas & Elec. Co.,

713 F.3d 502, 520 (9th Cir. 2013) (quoting United States v.

6(...continued)

were not explicitly asserted in the First Lawsuit. Nevertheless,

the bankruptcy court found that “the causes of action which rely

on the facts surrounding the wrongful foreclosure . . . can be

dismissed pursuant to the Two Dismissal Rule.”

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Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011)). “Although

leave to amend should be given freely, a district court may

dismiss without leave where a plaintiff’s proposed amendments

would fail to cure the pleading deficiencies and amendment would

be futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d

1034, 1041 (9th Cir. 2011); see Civil Rule 15(a) (“The court

should freely give leave when justice so requires.”).

The bankruptcy court determined that leave to amend would be

futile because Mr. Singh could not plead any viable claim. We

agree. As the bankruptcy court comprehensively explained, each

of Mr. Singh’s claims failed as a matter of law for multiple

reasons, and Mr. Singh did not propose any way in which he could

amend his complaint to avoid the many hurdles.

In his briefs, Mr. Singh only states that “[t]he trial court

erred in in [sic] dismissing the Adversary complaint without

leave to amend.” He also baldly states that the complaint “can

reasonably be amended to allege standing and to plead with

sufficient particularity on each of SINGH’s claims[,]” but he

does not explain how he would amend the complaint to cure the

defects. 

We do not consider arguments that are not specifically and

distinctly argued in the appellant’s opening brief. See Padgett,

587 F.3d at 986 n.2; Bolt v. Crake (In re Riverside-Linden Inv.

Co.), 945 F.2d 320, 325 (9th Cir. 1991) (holding that a passing,

conclusory statement “did not permit the issue to be ‘fully

explored,’ . . . and we consider the issue waived”). Mr. Singh

provides no analysis, legal authority, or facts supporting his

assertion that he should be entitled to amend his complaint. 

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At oral argument, counsel for Mr. Singh argued that the

bankruptcy court should have allowed Mr. Singh to amend his

complaint to allege that Wells Fargo had to start the foreclosure

process anew, presumably because the Unlawful Detainer Judgment

voided all earlier actions to foreclose on the Property. But

Mr. Singh did not articulate this theory to the bankruptcy court

or in his briefs, so we will not consider it. See Ezra v. Seror

(In re Ezra), 537 B.R. 924, 932 (9th Cir. BAP 2015).7

Accordingly, the bankruptcy court did not abuse its

discretion in granting the Motion to Dismiss with prejudice. 

7 Further, there is no reason to allow Mr. Singh to file an

amended complaint based on his fear that Wells Fargo might err

again. As far as we can tell from the record, Mr. Singh’s serial

bankruptcy filings have so far prevented Wells Fargo from

foreclosing again. If Wells Fargo manages to get a new

foreclosure off the ground, Mr. Singh could assert any proper

challenges to that foreclosure at an appropriate time and in an

appropriate forum. Any wrongs committed in that new foreclosure

would not have any bearing on the bankruptcy case in which this

adversary proceeding was brought (Mr. Singh’s tenth bankruptcy

case) because that bankruptcy case has been dismissed. Any

claims arising out of the new foreclosure would be based on

conduct occurring after that bankruptcy case was dismissed, and

those claims would not be property of the estate in the dismissed

bankruptcy case. Because the claims arising out of the new

foreclosure would not affect the outcome of Mr. Singh’s tenth

bankruptcy case or the administration of his estate, the

bankruptcy court likely would not have “related to” subject

matter jurisdiction. Cf. Montana v. Goldin (In re Pegasus Gold

Corp.), 394 F.3d 1189, 1193 (9th Cir. 2005) (stating that the

“related to” test examines whether “the outcome of the proceeding

could conceivably have any effect on the estate being

administered in bankruptcy”); Linkway Inv. Co. v. Olsen (In re

Casamont Inv’rs, Ltd.), 196 B.R. 517, 521 (9th Cir. BAP 1996)

(“An action is ‘related to’ a bankruptcy case if the outcome of

the proceeding could conceivably alter the debtor’s rights,

liabilities, options or freedom of action (either positively or

negatively) in such a way as to impact on the administration of

the bankruptcy estate.”).

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D. Mr. Singh fails to allege any actual injury.

The bankruptcy court held that Mr. Singh did not properly

allege any injury, which is fatal to many of his claims. 

Mr. Singh argues on appeal that he was damaged in an unspecified

amount to be determined at trial. The court did not err.

As a general rule, a plaintiff must allege damages suffered

due to the allegedly improper foreclosure. See generally

Cervantes, 656 F.3d at 1044 (holding that plaintiffs failed to

state a claim where they “have not identified damages”); Simmons

v. Aurora Bank FSB, No. 13-cv-00482-HRL, 2016 WL 192571, at *7

(N.D. Cal. Jan. 15, 2016) (stating that, to state a claim for

wrongful foreclosure, a plaintiff must allege that “she was

prejudiced or harmed”). In this case, Mr. Singh alleges that he

suffered prejudice because “he lost his home at a foreclosure

sale,” which “shows prejudice” in and of itself and would

naturally cause anyone “emotional suffering.” But aside from

these vague statements, he still fails to allege how and to what

extent he has been actually harmed. He also argued to the

bankruptcy court that the property taxes on the Property had

increased; but it is undisputed that he has not paid taxes since

he defaulted on the mortgage loan.

Mr. Singh fails to articulate any actual injury or explain

how he would cure this defect if he were allowed to amend his

complaint. The bankruptcy court did not err in determining that

he did not allege actual injury.

E. We will not consider new arguments raised for the first time

on appeal.

Mr. Singh raises a number of new arguments on appeal that he

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did not present to the bankruptcy court. For example, he makes

references to Wells Fargo’s alleged violations of the Equal

Credit Opportunity Act and the California Homeowners’ Bill of

Rights. He also raises new factual arguments, detailing Wells

Fargo’s alleged misapplication or miscalculation of his mortgage

payments, the “contrived” default, invalid assignment, and

improper securitization. 

We will not consider these new arguments in the first

instance. We have stated that, “[o]rdinarily, federal appellate

courts will not consider issues not properly raised in the trial

courts. . . . An issue only is ‘properly raised’ if it is raised

sufficiently to permit the trial court to rule upon it.” In re

Ezra, 537 B.R. at 932 (citations omitted); see Moldo v. Matsco,

Inc. (In re Cybernetic Servs., Inc.), 252 F.3d 1039, 1045 n.3

(9th Cir. 2001) (stating that the appellate court would not

explore ramifications of argument because it was not raised in

the bankruptcy court); Levesque v. Shapiro (In re Levesque),

473 B.R. 331, 335 (9th Cir. BAP 2012) (“Ordinarily, if an issue

is not raised before the trial court, it will not be considered

on appeal and will be deemed waived.”).

Accordingly, Mr. Singh has waived these arguments.8

8 We have discretion to “consider an issue raised for the

first time on appeal if (1) there are exceptional circumstances

why the issue was not raised in the trial court, (2) the new

issue arises while the appeal is pending because of a change in

the law, or (3) the issue presented is purely one of law and the

opposing party will suffer no prejudice as a result of the

failure to raise the issue in the trial court.” In re Ezra,

537 B.R. at 932-33 (quoting Franchise Tax Bd. v. Roberts (In re

Roberts), 175 B.R. 339, 345 (9th Cir. BAP 1994)). Mr. Singh has

(continued...)

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CONCLUSION

The bankruptcy court did not err when it dismissed

Mr. Singh’s adversary complaint with prejudice. We AFFIRM.9

8(...continued)

not identified any exceptional circumstances excusing his failure

to raise any of these issues below. He also does not identify

any change in law, assert that the issue is purely one of law, or

discuss prejudice Wells Fargo may face.

9 As an additional justification for the dismissal of

Mr. Singh’s claims for equitable relief, the bankruptcy court

held that he failed to tender payment of the debt. We do not

reach this issue because we are affirming the decision on several

other, independently sufficient grounds.

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