NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD W. CLARK, as trustee of 

Richard W. Clark and Merri Sue Clark 

Revocable Living Trust, 

Plaintiff-Appellant, 

 v. 

LSF9 MASTER PARTICIPATION TRUST; 

et al., 

Defendants-Appellees.

No. 22-35343 

D.C. No. 6:20-cv-00295-MC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael J. McShane, District Judge, Presiding

Submitted July 27, 2023**

Before: OWENS, LEE, and BUMATAY, Circuit Judges.

Richard Clark appeals pro se the district court’s dismissal of his complaint 

seeking declaratory and injunctive relief against his creditors, including LSF9 

Master Participation Trust (“LSF9”), which seek to foreclose on his property. We 

* 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

AUG 1 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

have jurisdiction under 28 U.S.C. § 1291. Reviewing the dismissal of Clark’s 

complaint de novo, Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 

2010), and the district court’s exercise of judicial estoppel for abuse of discretion, 

Johnson v. Or. Dept. of Human Res., Rehab. Div., 141 F.3d 1361, 1364 (9th Cir. 

1998), we affirm. 

1. Clark’s 2020 settlement agreement does not preclude LSF9’s current 

foreclosure action. Under Oregon law, “[a] general judgment incorporates a 

previous written decision of the court that decides one or more requests for relief in 

the case,” but only if the previous decision “[i]s not a judgment.” Or. Rev. Stat. 

§18.082 (2). Clark contends that the settlement he entered in 2020 with Wells Fargo 

(LSF9’s predecessor in interest) encompasses Wells Fargo’s initial judicial 

foreclosure action, which Wells Fargo dismissed voluntarily in 2016. But the 

voluntary dismissal of Wells Fargo’s initial foreclosure was a separate “judgment” 

from Clark’s appeal of his counterclaims, which were resolved in 2020. 

The general judgment of dismissal entered in 2016 is legally distinct from 

Clark’s appeal of his counterclaims. As the state appellate court noted in its 

disposition of Clark’s original appeal, it “reverse[d] and remand[ed] with respect to 

defendants’ counterclaims but otherwise affirm[ed].” Wells Fargo Bank, N.A. v. 

Clark, 294 Or. App. 197, 199 (2018) (emphasis added). The text of the 2020 

dismissal order confirms that understanding. It states that, “all of the Clarks’ 
3 

counterclaims...are DISMISSED WITH PREJUDICE[.]” And the settlement 

agreement between Clark and Wells Fargo releases the Clarks’ claims, not Wells 

Fargo’s. In sum, the counterclaims dismissed with prejudice in 2020 are legally 

distinct from the judicial foreclosure, which was dismissed without prejudice in 

2016. And because “a dismissal without prejudice cannot give rise to claim 

preclusion,” LSF9 is not precluded from foreclosing on Clark’s house now. Clark 

v. Gates, 138 Or. App. 160, 165 (1995). 

2. The district court did not abuse its discretion by invoking judicial 

estoppel to bar Clark from relitigating the ownership of his loan. “A court abuses 

its discretion when it fails to apply the correct legal standard or bases its decision on 

unreasonable findings of fact.” Nachshin v. AOL, LLC, 663 F.3d 1034, 1038 (9th 

Cir 2011) (citing Las Vegas Sands, LLC v. Nehme, 632, F.3d 526, 532 (9th Cir. 

2011)). Judicial estoppel “prevent[s] a party from changing its position over the 

course of judicial proceedings when such positional changes have an adverse impact 

on the judicial process.” Russell v. Rolf, 893 F.2d 1033, 1037 (9th Cir. 1990). While 

the criteria for judicial estoppel “are probably not reducible to any general 

formulation of principle,” the Supreme Court has identified three guideposts for 

courts seeking to “prevent improper use of judicial machinery.” New Hampshire v. 

Maine, 532 U.S. 742, 750 (2001) (simplified). First, we evaluate whether the party’s 

later position was clearly inconsistent with its earlier one. Id. We then assess 
4 

whether there was judicial acceptance of the original position. Id. at 750-51. Finally, 

we consider whether the party advancing the inconsistent position would gain an 

unfair advantage in the litigation if not estopped. Id. at 751. 

Applying this guidance, we cannot say that the district court abused its 

discretion. First, Clark’s current position–that Wells Fargo and its successors do not 

own his loan–is inconsistent with his acknowledgment in his 2009 bankruptcy 

proceeding that Wells Fargo was his creditor. Second, Clark’s earlier 

acknowledgment was judicially sanctioned when the bankruptcy was finalized. 

Third, Clark would gain an unfair advantage if permitted to re-litigate ownership of 

his loan at this stage. The district court acted well within its discretion by preventing 

Clark from taking a position inconsistent with his prior dispute.

3. Because we conclude that Clark’s creditors are not precluded from 

pursuing foreclosure, we do not address the district court’s discussion of whether a 

nonjudicial foreclosure counts as “successive litigation.”

AFFIRMED.