UNITED STATES COURT OF APPEALS TENTH CIRCUIT

___________________ ________________ COMMONWEALTH PROPERTY ADVOCATES, LLC, Plaintiff-Appellant, v. No. 10-4182 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendant-Appellee. (D.C. No. 2:10-CV-00340-TS) (D. Utah)

___________________ _________________ COMMONWEALTH PROPERTY ADVOCATES, LLC, Plaintiff-Appellant, v. No. 10-4193 BAC HOME LOANS SERVICING, LP, formerly know n as Countrywide Home Loans Servicing, L.P.; RECONTRUST COMP ANY, a Texas corporation, Defendants-Appellees. (D.C. No. 2:09-CV-01146-DB) (D. Utah)

___________________ _________________ COMMONWEALTH PROPERTY ADVOCATES, LLC, Plaintiff-Appellant, v. No. 10-4215 FIRST HORIZON HOME LOAN CORPORATION; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., (D.C. No. 2:10- CV-0375-DB) (D. Utah) FILED United States Court of Appeals Tenth Circuit 

### December 23, 2011
Elisabeth A. Shumaker Clerk of Court- 2 - Defendants-Appellees.

___________________ _________________ ORDER AND JUDGMENT *

___________________ _________________ Before LUCERO , BALDOCK , and HARTZ , Circuit Judges. **

___________________ _________________ Plaintiff Commonwealth Property Advocat es, LLC, acquired title to three pieces of real property in Utah from three defaulting borrowers. Plaintiff then filed three suits in diversity against various Defendants which he ld interests in the property, seeking to prevent foreclosure. Plain tiff argued Defendants had no authority to foreclose because the notes in each case had been securitized and sold on th e open market. Because the security follows the debt, Plaintiff argued, once Defendants sold the security they could not foreclose absent authorization from every investor who had purcha sed an interest in the securitized note. Defendants in all thre e cases filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and the district c ourt granted those motions. Plaintiff appealed, and we now consolidate these cases for pur poses of opinion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I.

* This order and judgment is not bind ing precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** This panel heard oral argument in ap peal 10-4215 on Nove mber 17, 2011. Defendants in appeals 10-4182 and 10-4193 waiv ed oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). Appeals 10 -4182 and 10-4193 are therefore ordered submitted on the briefs.- 3 - The following facts are foun d in Plaintiff’s complaints and the attached exhibits. In appeal 10-4182, the orig inal borrower received two lo ans totaling $309,000 from American Sterling Bank, secured by real prop erty in Bountiful, Utah. Each security interest was memorialized by a promissory note and a deed of trust naming as beneficiary Defendant Mortgage Electroni c Registration Systems (“MERS ”) in its capacity as nominee for American Sterling. 1 Each deed of trust also contained a provision giving MERS “the right to foreclose and sell the Propert y” and to take other actions on behalf of the lender. The complaint alleges that “[t]he obligations on the Notes were pooled and sold by Lender . . . as securities to numerous investors unknown.” 2 The original borrower defaulted and MERS se rved a notice of default on th e property. Subsequently, Plaintiff acquired title to the property by way of quitclaim deed. Plaintiff filed suit against MERS alleging “causes of action” for (1) “stay of pending sale,” (2) “estoppel/declaratory judgment,” (3) declar atory judgment, (4) quiet title, and (5)

1 MERS is a private electronic database that tracks the transfer of the beneficial interest in home loans. Cervantes v. Coun trywide Home Loans, Inc., 656 F.3d 1034, 1038 (9th Cir. 2011). “MERS was designed to a void the need to reco rd multiple transfers of the deed by serving as the nominal record holder of the deed on behalf of the original lender and any subsequent lender.” Id. at 1039. MERS is desi gnated in the deed of trust as a “nominee” for the lender and the lender’s successors and assigns as well as the “beneficiary” of the deed. Id. MERS thus holds legal title to the security interest. Id. “If the lender sells or assigns the beneficial interest in the loan to another MERS member, the change is recorded only in the MERS database, not in county records, because MERS continues to hold the deed on the new lender’s behalf.” Id. Thus, no recordation takes place unless the trust deed is transferred to an entity that is not a me mber of MERS. Id.

2 This process of pooling loans and selling th em to investors on the open market is known as securitization. MERS facilitate s the securitization process by allowing promissory notes to be transf erred without costly recordati on in local land records. See BAC Home Loans Servicing, L.P. v. White, 256 P.3d 1014, 1017 (Okla. Civ. App. 2010).- 4 - “refund, fees and costs.” Defendant MERS move d to dismiss for failure to state a claim, and the district court granted th e motion. Plaintiff appealed. In appeal 10-4193, the original borro wer received $1,135 ,400 from GreenPoint Mortgage Funding to acquire real property in Sandy, Utah. In exchange, the borrower executed a promissory note in favor of Green Point. The borrower also executed a deed of trust in favor of Meridian Title Compan y. The trust deed named MERS as both the beneficiary and GreenPoint’s nominee and expressly gave ME RS the right “to foreclose and sell the property.” Defe ndant BAC Home Loans Servicin g later became the servicer of the note, and Defendant Rec onTrust was named as substitute trustee. According to the complaint, “the obligation unde r the Note was pooled and sold by Lender . . . as securities to numerous investors unknow n.” When the orig inal borrower defau lted, ReconTrust served a notice of default and in tent to sell. Plaintiff acquir ed title to the property via quitclaim deed about seven we eks later. Plaintiff then filed suit against BAC Home Loans and ReconTrust asserting four “causes of action” labeled (1) “estoppel/declaratory judgment,” (2) declaratory judgment, (3) quiet title, and (4) “refund, fees and costs.” Defendants filed a motion to dismiss for failure to state a claim, and the district court granted the motion. Plaintiff then filed a “motion to recons ider” pursuant to “Rules 59 and 60, FRCP” because the dist rict court “appears to have overlooked the applicable statute and the facts as admitted herein.” The district court denied this motion as well, concluding Plaintiff had not shown obvious error or introduced new, previously undiscoverable evidence. In stead, the court said, Plaintiff’s motion “raise[d] new arguments not addressed in the briefing to the court and rehashe[d] arguments already- 5 - considered by the court.” Th e court entered its order denying the “motion to reconsider” on October 1, 2010. On October 29, 2010, Plai ntiff filed a notice of appeal, stating that “defendant [sic] appeals . . . the decision of the District Court here in entered October 1,
2010.” In appeal 10-4215, the or iginal borrower executed tw o promissory notes totaling $1,250,000 in favor of Defendant First Hori zon Home Loan Corporation. The borrower secured these notes by two deeds of trust in property in Alpine, Utah. The trust deeds named Meridian Title Company as trustee. Both deeds of trust designated MERS as the beneficiary and as First Horizon’s nominee, a nd both gave MERS th e right to foreclose and sell the property on First Horizon’s behal f. First Horizon pooled the obligations on the notes and sold them as s ecurities to various investors. First Horizon also substituted eTitle as the trustee, but did not initially re cord the substitution. The original borrower defaulted on the loan, and trus tee eTitle filed a notice of defa ult. The original borrower then quitclaimed the property to Plaintiff. Plainti ff sued First Horizon and MERS, asserting “causes of action” for (1) “stay of pending sale,” (2) “estoppel/declaratory judgment,” (3) declaratory judgm ent, (4) quiet title, and (5) “refund, fees and costs.” The district court granted Defendants’ moti on to dismiss, and Plaintiff appealed. Plaintiff’s complaints are difficult to construe, but they appear to raise three substantive claims for relief. 3 First, under the heading of “Estoppel/Declaratory

3 Plaintiff’s first claim, for stay of a for eclosure sale “pending resolution of issues of rights under the security,” was rendered moot by the district court’s final judgment, which resolved the “issues of ri ghts under the security.” Plai ntiff did not seek a stay of- 6 - Judgment,” Plaintiff alleges Defendants fa iled to provide inform ation regarding the interests of “persons to whom the Note and/or Trust Deed may be assigned” when requested to do so by Plaintiff. Plaintiff a lleges the failure to pr ovide this information subjects it “to risks, abuses, and prejudice” and “render[s] im possible proper discharge of the obligation on th e Note.” Thus, Plaintiff seeks to estop Defendants from asserting that the notes are in default or that they hold the po wer of sale under the trust deeds. Plaintiff also requests a declaratory judgment that Defe ndants “lack any [enforceable] interest in the trust deed.” In 10-4215 , Plaintiff makes several add itional allegations under this cause of action. Plaintiff alleges Defendan ts violated a number of Utah statutory provisions, Utah Code Ann. §§ 57-1-22(3)(a); 57-1-22(1)(a ); 57-1-23; and 57-1-21(4). Plaintiff also alleges, “First Horizon is a ttempting to foreclose on the subject property without being the Beneficiary of record for the first position Trust Deed.” In its second substantive claim, Plain tiff seeks a declaratory judgment that Defendants “lack any interest under the Trust De ed which may be enforc ed by . . . sale of the subject property.” Plaintiff alleges that , because Defendants tran sferred the notes to subsequent assignees, Defendant s “lacked authority to declare a default” or to sell the subject property and distribut e any proceeds. The complain ts allege that because the investors in each securitized note were not assigned the corresponding trust deed, “the obligation under the Note has . . . become unsecured, and the Note and Trust Deed, may not be foreclosed.” Pl aintiff further claims it is “a bona fide purchaser for value of the

foreclosure pending appeal. Nevertheless, Defendants appear to have voluntarily postponed foreclosure in all three cases.- 7 - subject property without notice of any clai m” by persons to whom Defendants assigned the notes. Plaintiff’s third claim, seeking to quiet title, rests upon two grounds. First, Plaintiff asserts that Defendants’ failure “to re tain any interest in the obligation under the Note voided any title or powe r they might have under the Trust Deed, and rendered said Trust deed unenforceable by them.” Second, Pl aintiff alleges that “[r]ecordation of the plaintiff’s deed to the subject property prior to the recorda tion of any assignment of the Trust Deed, renders any such assignments void and unenforceable against the subject property” under Utah Code Ann. §§ 57-3-102 and 57- 3-103. Plaintiff seeks to quiet title in its favor, thus “freeing title to the subj ect property of the lien of the Trust Deed and leaving any obligation under the Note unsecured . . . .” 4 Plaintiff appears to raise only one issue on appeal. 5 Plaintiff argues securitization

4 Plaintiff’s final claim for “refund, fees and costs” appears to be a novel attempt to request sanctions as part of a complaint. Plaintiff alleges that De fendants’ “pretense of authority to foreclose, or attempt to fo reclose, under the Trust Deeds were [sic] fraudulent.” Plaintiff alleges any assertions by Defendants that they were entitled to enforce the obligations on the notes “would constitute a fraud upon the court” subject to sanctions under Utah Code An n. § 78-5-825. Thus, Plain tiff asked the court to order Defendants to pay Plaintiff’s costs. This claim has no plausible legal basis.

5 Plaintiff’s statements of the “issues on appeal” provide little help in determining what exactly Plaintiff is appealing. In appe al 10-4182, for example, Plaintiff states the “issues on appeal” as follows: (1 ) “Was the District Court bound by the plain terms of the documents executed by the parties, including that making enforcement by the owner of the debt option in case of an y non-payment?”; (2) “Was th e District Court required to deem established on motion to dismiss the f actual allegations of the Complaint?”; (3) “Was the District Court required to take co gnizance of proffered documents showing the sale of the subject loan in the securitization scheme?”; (4) “What is the effect of [Utah Code Ann. § 57-1-35] where lo ans are sold for purposes of securitization?”; (5) “Are cases in which transfer of th e debt is not shown applicable?”; (6) “Where the documents- 8 - of a note renders the holder of the underly ing trust deed and its nominees unable to foreclose absent authorization by every investor holding an inte rest in the securitized note. Plaintiff contends that any authorizati on to foreclose contained in the trust deeds is invalidated by Utah Code Ann. § 57-1-35. This claim app ears to relate to Plaintiff’s second and third substantive claims for re lief, both of which ch allenged Defendants’ authority to foreclose, but wh ich sought different forms of re lief (a declaratory judgment and quiet title). Although Plaint iff’s complaints appeared to raise several other claims, Plaintiff has not raised those claims on app eal. An appellant’s ope ning brief must set forth “appellant’s conten tions and the reasons for them, w ith citations to the authorities and parts of the record on which the appella nt relies.” Fed. R. App. P. 28(a)(9)(A). Consequently, “[a]n issue or argument insuffi ciently raised in th e opening brief is deemed waived.” Becker v. Kroll, 494 F.3d 904, 913 n. 6 (10th Cir. 2007). Because Plaintiff has only appealed with respect to De fendants’ authority to foreclose, we will not address the remaining claims. 6
II.

make enforcement optional in any case of no n-payment, the loan has previously been sold, and the new owner takes no step to en force, may the District Court authorize foreclosure by the original lender which sold the loan and was paid off?” Appeal 10- 4215 added the following unhelpful issue stat ement: “5. May the district court rely upon misquotation of an irrelevant st atement in an inapposite case?”

6 Plaintiff appears to raise another claim in its opening brief. Plaintiff argues in its brief that foreclosure would be invalid becaus e Defendants failed to co mply with the trust deeds’ requirement that Defe ndants give a notice of a cceleration and a thirty-day opportunity to cure before inv oking the trustee’s statutory po wer of sale. Plaintiff failed to plead this claim in its co mplaint, and therefore we will not consider it on appeal. See Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006).- 9 - We first address Defendants’ arguments challenging our jurisdiction. In appeal 10-4193, Defendants argue we cannot consider the merits of the 12(b)(6) motion because Plaintiff appealed only the denial of its “m otion to reconsider.” In appeal 10-4215, Defendants argue Plaintiff lacks standing to sue, because Plaintiff’s in jury is self-imposed and because Plaintiff is seeking to assert a third party’s rights.
A. We may construe Plaintiff’s motion to re consider as relevant to appeal 10-4193 either as a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e) or as motion for relief from the judgment under Fed. R. Civ. P. 60(b). If a motion is timely under both rules, how we construe it de pends upon the reasons expresse d by the movant. Jennings v. Rivers, 394 F.3d 850, 855 (10th Cir. 2005). A Rule 59(e) motion is the appropriate vehicle “to correct manifest errors of law or to present newly discovered evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 ( 10th Cir. 1997) (quoting Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992)). A Rule 60(b) motion is appropriate for, among other things, “mistake , inadvertence, surprise, or excusable neglect” and “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new tr ial.” Fed. R. Civ. P. 60(b)(1),(2). The district court did not construe Plaintiff’s mo tion as either a Rule 59 or Rule 60 motion, but simply denied it. Plain tiff’s motion was filed within fo urteen days of the district court’s order, meaning it was timely under Rule 59(e). The motion appears to be properly characterized as a Ru le 59(e) motion, because Plaintiff claimed the district court “overlooked the applicable statute and the fact s.” We accordingly construe it as a Rule- 10 - 59(e) motion. “[A]n appeal from the denial of a motion to reconsider construed as a Rule 59(e) motion permits considerat ion of the merits of the und erlying judgment, while an appeal from the denial of a Rule 60(b) mo tion does not itself preserve for appellate review the underlying judgment.” Hawkins v. Evans, 64 F.3d 543, 546 (10t h Cir. 1995). Because we construe Plaintiff’s motion as one brought under Rule 59(e), we may consider the merits of the district court’s underlying dismissal.
B. Defendants next challenge Plaintiff’s sta nding as relevant to appeal 10-4215. The doctrine of standing has both a constitutional and a pruden tial component. To have standing under Article III, Plaintiff must a ssert an injury that is (1) concrete, particularized, and actual or imminent, (2) fa irly traceable to the Defendants’ challenged action, and (3) redressable by a favorable ruling. Horne v. Fl ores, 129 S. Ct. 2579, 2592 (2009). Defendants First Horizon and MERS ar gue Plaintiff’s alleged injuries are not “fairly traceable” to any conduct by Defendan ts because Plaintiff’s injuries “resulted from [Plaintiff’s] own decision to knowingly purchase a trus t deed-encumbered property from a defaulting borrower, not the result of any conduct by [Defendants].” Defendants cite Nova Health Systems v. Gandy, 416 F.3d 1149, 1156 n.8 (10th Cir. 2005), in which we characterized an abortion provider’s “injur y” as self-inflicted because it resulted from the provider’s decision to adopt stricter parental notif ication procedures than the challenged statute required. This case diffe rs from Gandy because the asserted injury— an unauthorized foreclosure—was initiated by Defendants, not Plaintiff. Unlike the plaintiff in Gandy, Plaintiff has brought no additional injury up on itself. Plaintiff’s- 11 - decision to purchase the encumbered property in no way deprived it of the right to challenge an allegedly unauthorized foreclosure. 7 Thus, Plaintiff has Article III standing. One element of prudential standing is “the general prohibition on a litigant’s raising another person’s legal rights.” El k Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004). Defendants in 10-4215 argue Plaintiff is attempting to assert the rights of a third party, the original borrower on the mortgage. Defendants cite Shire Development v. Frontier Inve stments., 799 P.2d 221, 222–23 (Utah Ct. App. 1990), for the proposition that “a plaintiff lacks standing to sue about a contract to which he is not a party.” Plaintiff has not, however, asserted any contractual rights. Instead, Plaintiff alleges Defendants have no legal or contractua l authority to foreclose. Because Plaintiff is the current owner of the real property, a foreclosure would injure Plaintiff directly. Therefore, Plaintiff also has prudential st anding, and we may proceed to the merits.
III. We review a Rule 12(b)(6) dismissal de novo, accepting as true all well-pleaded

7 Defendants also cite an unpublished distri ct court opinion, D.M. Johnson Family Trust v. Countrywide Home Loans, Inc., 200 9 WL 3615690 (D. Utah Oct. 28, 2009). There, defaulting borrowers transferred thei r property to straw purchasers for $1.9 million, lent to the purchasers by Countrywi de, with the agreemen t that the original borrowers would make the payments on the Countrywide loan. When the borrowers again defaulted, they brought suit against Countrywide, alleging that Countrywide engaged in predatory le nding practices. The dist rict court held that the original defaulting borrowers lacked standing. There was no injury, the cour t said, because Countrywide’s loan to the straw purchasers actually benefitted plaintiffs. Furthermore, the court said no causal nexus existed between Countrywide’s pr ovision of the loan and the plaintiffs’ injury, because the plaintiffs ’ failure to pay precipitate d foreclosure. Unlike in Countrywide, the allege d injury in this case is not a predatory loan that benefitted Plaintiff, but rather a foreclosure on Plainti ff’s property. So in addition to having no precedential value, Country wide is inapposite.- 12 - factual allegations in the comp laint and viewing them in the light most favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). In evaluating a motion to dismiss, we may consid er not only the comp laint, but also the attached exhibits and documents incorporated into the complaint by re ference. Id. “To survive a motion to dismiss, a complaint must cont ain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombl y, 550 U.S. 544, 570 (2007)). When reviewing a 12(b)(6) dismissal, “we must de termine whether the co mplaint sufficiently alleges facts supporting all the elements nece ssary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). Dismissal is appropriate if the law simply affords no relief. See United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 712 (10th Cir. 2006) (observing that dismissal unde r 12(b)(6) was appropriate where a federal statute provided no remedy for the alleged conduct). Our first task is to determine exactly what cause or causes of action Plaintiff is asserting. Plaintiff’s “causes of action” lis ted in its complaints are actually forms of relief. Because Plaintiff asserted no federal cl aims and brought this case in diversity, its claims for relief must be gro unded in state law. Plainti ff, however, asserted no common law basis for its claims and waived its only claims based on Utah statutes. 8 The claim Plaintiff pursues on appeal is simply that Defendants had no authority to foreclose

8 Plaintiff’s complaint in ap peal 10-4215 allege d violations of Ut ah Code Ann. §§ 57-1-22(3)(a); 57-1-22(1)(a ); 57-1-23; and 57 -1-21(4), but Plaintiff has not renewed these allegations on appeal.- 13 - because they transferred the de bt. The most analogous state law cause of action appears to be an action for wrongful foreclosure. See Timm v. Dewsnup, 990 P.2d 942, 945 (Utah 1999) (remanding for the trial court “to ad dress the merits of [p laintiff’s] claim for the wrongful foreclosure of the trust deed pr operty”). The elements of this cause of action are unclear, but “[a] part y may have an apparently valid trustee’s sale set aside for irregularity, want of notice, or fraud if there is eviden ce sufficient to overcome the presumption of its validity.” Occidental/Neb. Fed. Sav. Ba nk v. Mehr, 791 P.2d 217, 221 (Utah 1990). We construe Plaintiff’s proper ly preserved claim as one for wrongful foreclosure under Utah law. Our next question is whether th e facts alleged are sufficient to support a claim for relief. Utah law relating to trust deeds gives a tr ustee the power to sell the trust property if the borrower breaches an obligation relating to the secured property . Utah Code Ann. § 57-1-23. In addition, the beneficiary ma y elect to have the foreclosure conducted according to the “law for the foreclosure of mort gages on real property .” Id. The trustee may exercise the power of sale even “without express provision for it in the trust deed.” Id. Thus, under § 57-1 -23 the only trustee Defendant in this case, ReconTrust, had apparent authority to foreclose. Additionally, all the trust deeds in this case said “MERS (as nominee for Lender and Lender’s successo rs and assigns) has the right: to exercise any or all of [Lender’s] intere sts, including, but not limited to , the right to foreclose and sell the Property.” This language appears to give MERS the right to foreclose on behalf- 14 - of not only the lenders but also the lender’s successors and assigns. 9 As the district court said, “By the clear language of the deeds of trust, MERS ha s the authority to foreclose and sell the property on behalf of both the orig inal lender and the ‘le nder’s successors.’” Nevertheless, Plaintiff argues the trust deed provisions giving ME RS this right are invalid because they conflict with Utah Code Ann. § 57-1-35. Plaintiff also appears to argue § 57-1-35 deprived ReconT rust of the power to foreclos e as a trustee. Section 57- 1-35 says: “The transfer of any debt secured by a trust deed shall operate as a transfer of the security therefor.” Plaintiff argue s this provision invalidates MERS’s and ReconTrust’s authorization to foreclose, becau se the sale of the note in the subsequent securitization scheme also transferred the secu rity. Plaintiff claims Defendants can no longer foreclose because they no longer ho ld the security interest in the real property. According to Plaintiff, “upon sale of a loan, in a securitization or otherwise, original ‘nominees,’ such as MERS, lose any right to exercise any power under the trust deed . . . absent some further agreement w ith the new owner of the debt.” 10 Under Plaintiff’s

9 Although Plaintiff named BAC Home Loans Servicing as a defendant in 10- 4193, the complaint in that case alleges no facts to suppo rt any culpability on BAC’s part. Thus, the 12(b)(6) dismissal was clearly appr opriate as to BAC Home Loans Servicing.

10 Defendants in appeal 10-4215 argue th at the Pooling and Servicing Agreement (PSA), the document which ef fected the securitization, independently authorized Defendants to foreclose. Plaintiff argues that the PSA is not a sufficient “further agreement” with the investors because it does not satisfy the statute of frauds. The PSA is, in fact, irrelevant because it is not prop erly before us. On appeal from a 12(b)(6) motion to dismiss, we may only look at the complaint, the attach ed exhibits, and any document incorporated into the complaint by reference that is filed with the defendant’s 12(b)(6) motion. Smith v. United States, 56 1 F.3d 1090, 1098 (10th Cir. 2009); Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1253–54 (10th Cir. 2005).- 15 - theory, the “new owners” of the debt are the investors who purchased interests in the securitized debt. Plaintiff argues MERS can only foreclose if each investor provides MERS with written authorization to do so. The Utah Supreme Court has never addre ssed the effect of § 57-1-35 on the power to foreclose. While these appeals were pending, however, the Utah Court of Appeals addressed Plaintiff’s arguments and inte rpreted § 57-1-35. Commonwealth Prop. Advocates v. Mortg. Elec. Registration Sys. , Inc., 263 P.3d 397 (Utah Ct. App. 2011), cert. denied, Utah State Courts Appellate Docket No. 20100888 (Dec. 14, 2011). Commonwealth involved a suit brought by Plaintiff in Utah state court making almost identical claims and arguments to those it has put forth here. 11 The deed of trust in Commonwealth was identical to the trust deeds in these cases, and it gave MERS authority to foreclose on behalf of the lender a nd its assigns. 263 P.3d at 399. The Utah Court of Appeals concluded the trust deed provided sufficient au thority to foreclose. The court cited approvingly a number of federal district court opi nions (including the district

Plaintiff did not attach the PSA to any of its complaints, and none of the Defendants attached it to their motions to dismiss. Thus, we cann ot consider the document.

11 Indeed, if Defendants had been affo rded the opportunity to raise issue preclusion, Plaintiff’s claims almost certainly would ha ve been barred under that doctrine. Issue preclusion applies under Utah law where (1) the part y against whom issue preclusion is asserted was a part y to or in privity with a pa rty to the prior adjudication; (2) the issue decided in the pr ior adjudication was identical to the one presented in the instant action; (3) the issue in the first action was comp letely, fully, and fairly litigated; and (4) the first suit resulted in a final judgmen t on the merits. Jensen ex rel. Jensen v. Cunningham, 250 P.3d 465, 477 (Utah 2011). These requirements would have been satisfied here. Defendants had no opportunity to raise issue preclusion, however, because the state court’s decision was rendered afte r the briefing in all three appeals was concluded.- 16 - court’s opinion on appeal in 10-4215) that di smissed Plaintiff’s claims because the trust deeds authorized MERS to foreclose. Id. at 402. Th e state court said: “We also agree with the federal district court’s related rulings . . . that [Plaintiff] has failed to explain how the securitization of the Note could have revoked this language in the Deed of Trust.” Id. The state court then addressed Plaintiff’s reliance on § 57-1-35. The court said, “The plain language of this statute simply describes the long-applied principle in our jurisprudence that when a debt is transferred, the underlying security continues to secure the debt.” Id. at 403. The court went on: [W]e interpret section 57–1–35 as ensu ring the basic presumption that “[a] transfer of an obligation secured by a mortgage also transfers the mortgage unless the parties to the tr ansfer agree otherwise,” see Restatement (Third) of Prop.: Mortgages § 5.4. The plai n language of the statute does nothing to prevent MERS from acting as nominee for Lender and Lender’s successors and assigns when it is pe rmitted by the Deed of Trust. Therefore, contrary to [Plaintiff]’s liberal citation of section 57–1–35, we do not interpret the statute as preven ting, implying, or somehow indicating that the original partie s to the Note and Deed of Trust cannot validly contract at the outset “to have someone other than the beneficial owner of the debt act on behalf of that owne r to enforce rights granted in [the security instrument]” . . . . Id. (quoting Marty v. Mortg. Elec. Registration Sys., 2010 WL 4117196 (D. Utah Oct. 19, 2010)). The court went on to “reject [Plaintiff]’s asserti on that Utah C ode section 57- 1-35 prohibits the original pa rties to the Note and Deed of Trust from agreeing to have someone other than the beneficial owner of th e debt act on behalf of that owner and its successors and assigns to enforce rights grante d in the trust deed.” Id. at 404 (internal citations and brackets omitted). The court upheld the distri ct court’s entry of summary- 17 - judgment against Plaintiff. 12 Id. at 405. The Utah Court of Appeals’ decision in Commonwealth effectively disposes of these three cases. “When exer cising diversity jurisdiction, we apply state law with the objective of obtaining the result that would be reached in state court.” Butt v. Bank of Am., N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). If the stat e’s highest court has reached an issue, “[t]he federal court must defer to th e most recent decisions of the state’s highest court.” Wankier v. Crown E quip. Corp., 353 F.3d 86 2, 866 (10th Cir. 2003). Where the state’s highest court has not addressed the i ssue, we still follow the state’s intermediate court decisions absent “convincing evidence that the highest court would decide otherwise.” Webco Indus., Inc. v. Therma tool Corp., 278 F.3d 1120, 1126 (10th Cir. 2002) (citing B.F. Goodrich Co. v. Hammond, 269 F.2d 501, 505 (10t h Cir. 1959). According to the Supreme Court, “Where an intermediate appellate state court rests its considered judgment upon th e rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that th e highest court of the state would decide otherwise.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940) We have no reason to believe the Utah Supreme Court would reach a different result than did the Utah Court of Appeals. The court of appeals’ decision is based on a

12 The Utah state district court in Commo nwealth had converted the defendants’ motion to dismiss into a mo tion for summary judgment b ecause it relied on documents outside the complaint. The court of appeals affirmed the conversion, despite Plaintiff’s challenge. But the court obse rved that “even if the district court had not converted Defendants’ motion to dismiss into a motio n for summary judgment, its ruling on the motion to dismiss would have produced the same result—a dismissal of [Plaintiff’s] case.” Commonwealth, 2011 WL 2714429 at *6.- 18 - straightforward reading of the statute. Even assuming Plainti ff is correct that securitization deprives Defendant s of their implicit power to foreclose as holders of the trust deeds, the trust deeds explicitly granted Defendants the authority to foreclose. Contrary to Plaintiff’s conten tion, § 57-1-35 in no way prohibits such an authorization. The statute merely says the transfer of a debt operates as the transfer of the security. It says nothing about who is or is not authorized to foreclose on a trust deed. As the Utah Court of Appeals said: “[T]he Deed of Trust explicitly gave MERS the right to foreclose on behalf of ‘Lender and Lender’s successors and assigns.’ The statute does not prohibit parties from contracting for these arrangements . . . .” Commonwealth, 263 P.3d at 403. The state court’s decision is consistent both with the statute and with numerous federal district court cases that have addressed the same arguments. See id. at 402 (citing cases). The Utah Court of Appeals has reinforced its decision in an even more recent appeal by Plaintiff. Commonwealth Proper ty Advocates, LLC v. U.S. Bank Nat’l Ass’n, --- P.3d -- -, 2011 WL 6091684 (Utah Ct. App. Dec. 8, 2011) (per curiam) (“Because [Plaintiff’s] complaint in this cas e relies on the same erroneous pr inciple raised in MERS that securitization of the note sepa rated it from the trust deed, MERS is dispositive.”). We see nothing to suggest the Utah Supreme Court would reach a different conclusion. In fact, on December 14, 2011, the Utah Supreme Court chose not to grant certiorari in Commonwealth. Thus, we defer to the Utah Court of Appeals’ decision. Because Plaintiff’s diversity jurisdiction claims have no legal basis under Utah law, the district court properly dismissed all three compla ints under Fed. R. Civ. P. 12(b)(6). Accordingly, the judgments in appe als 10-4182, 10-4193, and 10-4215 are- 19 - AFFIRMED.

Entered for the Court,

Bobby R. Baldock United States Circuit Judge