NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
DANIELA ECKERLE; RICHARD D. ECKERLE, Plaintiffs - Appellants,

v. DEUTSCHE BANK NATIONAL TRUST, as Trustee for Securitization Corp. HSI Asset; HOMEWARD RESIDENTIAL, INC., Defendants - Appellees. No. 11-18068D.C. No. 1:10-cv-00474-SOMBMK

MEMORANDUM *

Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway, Chief District Judge, Presiding Submitted June 11, 2014 ** Honolulu, Hawaii Before: W. FLETCHER, IKUTA, and HURWITZ, Circuit Judges. 

# FILED
JUN 19 2014 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* 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).Richard and Daniela Eckerle appeal the summary judgment entered by the district court in favor of Deutsche Bank National Trust Company and American Home Mortgage Servicing, Inc., now known as Homeward Residential, Inc. (“AHMSI”). We have jurisdiction under 28 U.S.C. § 1291 and affirm. 1. Plaintiffs argue that the district court erred in granting summary judgment because it was required to treat “the allegati ons in the complaint . . . as being true.” To the contrary, when considering a summary judgment motion, the court must determine whether the non-moving party has demonstrated a “genuine dispute as to any material fact” warranting trial. Fed. R. Civ. P. 56(a). The Eckerles did not do so here. Richar d Eckerle’s affidavit stated: “I believe that there was a loan modification agreem ent in place” and “I am under the impression that a further loan modification is unde r review and still possible.” Eckerle’s speculation does not establish a material f actual dispute as to the existence of a modification agreement. Nelson v. Pima Cmty. Coll. , 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.”) The district court correctly held that the documents pl aintiffs cite as evidence of a binding loan modification are insufficient to satisfy the Hawaii statute of frauds. See Haw. Rev. Stat. § 656-1(4). The documents , at most, establish that the Eckerles 2might be eligible to apply for a loan m odification. For example, a letter from AHMSI states: “We are writing you to let you know that you may be eligible for certain programs that could be used to avoid a foreclosure . . . .” The plaintiffs also argue the “transfer of title was void because Eckerle had never been personally served with notice of the sale, and because of a break in the chain of title.” But none of those allegati ons are in their amended complaint. Because the plaintiffs presented no evidence below of the existence of a contract, any alleged deficiencies in the chain of title would notsave the breach of contract claim they actually asserted. 2. The district court did not abuse its di scretion in denying the Eckerles’ motion for reconsideration. See Kona Enters., Inc. v. Estate of Bishop , 229 F.3d 877, 883, 891 (9th Cir. 2000) (noting abuse of disc retion standard). Such a motion “may not be used to . . . present evidence for the firs t time when [it] could reasonably have been raised earlier in the litigation.” Id. at 890 (citation omitted). Two of the documents submitted with the motion for reconsiderati on were dated before the filing of the opposition to the motion for summary judgmen t. The movants never explained why the remaining document, a report appare ntly generated on their behalf, was not prepared earlier. 3. The notice of appeal was filed on December 27, 2011 and the district court 3ruled on the attorneys’ fee request on Marc h 14, 2012. The Eckerles, however, never amended the notice of appeal. This court therefore lacks jurisdiction to consider an appeal of the fee award. Culinary & Serv. Emps. Uni on Local 555 v. Hawaii Emp. Benefit Admin., Inc. , 688 F.2d 1228, 1232 (9th Cir. 1982). AFFIRMED
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