FILED FEB 11 2020 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: BAP No. AZ-19-1187-SFB

HELENA PEREZ REILLY, Bk. No. 3:18-bk-05319-DPC

Debtor. Adv. No. 3:19-ap-00008-DPC

HELENA PEREZ REILLY,

Appellant,

v. MEMORANDUM*

WELLS FARGO BANK, N.A.,

Appellee.

Submitted Without Oral Argument on January 30, 2020

Filed – February 11, 2020

Appeal from the United States Bankruptcy Court for the District of Arizona

* 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. Honorable Daniel P. Collins, Bankruptcy Judge, Presiding

Appearances: Appellant Helena Perez Reilly, pro se, on brief; Andrew M. Jacobs and Daniel J. Inglese of Snell & Wilmer L.L.P. on brief for appellee.

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

INTRODUCTION

Chapter 131 debtor Helena Perez Reilly commenced an adversary

proceeding challenging Wells Fargo Bank’s secured claim. The bankruptcy

court ultimately granted Wells Fargo’s Civil Rule 12(b)(6) motion to

dismiss Reilly’s first amended complaint without leave to amend. Reilly

appeals the dismissal order and the order denying her Rule 9023 motion.

Reilly’s first amended complaint was premised on two legal theories.

First, she posited that Wells Fargo was required to record an assignment of

deed of trust in order to perfect its security interest in her residence.

According to Reilly, because Wells Fargo did not do so, its claimed security

interest in her residence was invalid and unenforceable. Second, she

1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code,

, and all “Rule” references are to the Federal Rules of Bankruptcy Procedure. All “Civil Rule” references are to the Federal Rules of Civil Procedure, and all “Evidence Rule” references are to the Federal Rules of Evidence.

2 insisted that the discharge she received in her prior chapter 7 case

extinguished both Wells Fargo’s lien as well as the underlying debt.

Because neither of these theories could support a legally cognizable

claim for relief, the bankruptcy court correctly dismissed her first amended

complaint. Amendment of her complaint could not cure the fatal defects in

these legal theories. Accordingly, the bankruptcy court was not obligated

to grant leave to amend.

Therefore, we AFFIRM.

FACTS

Reilly commenced her first chapter 7 case in July 2011. She listed

Wachovia Mortgage as a secured creditor with a security interest in her

residence in Flagstaff, Arizona.2 In April 2012, the bankruptcy court

granted Reilly a discharge of her debts.

Reilly commenced her second chapter 7 bankruptcy in May 2018, and

later converted the case to chapter 13. She listed Wells Fargo as a secured

creditor with a lien on her residence in the amount of $378,570.00. Though

she did not list this claim as contingent or disputed, her chapter 13 plan did

not provide for any payments either inside or outside of the plan on

account of this secured claim.

2 We have exercised our discretion to review Reilly’s bankruptcy and adversary proceeding dockets. Estate of Blue v. Cty. of L.A.,

(9th Cir. 1997); Mullis v. Bankruptcy Ct.,

, 1388 & n.9 (9th Cir. 1987).

3 Wells Fargo filed a proof of claim in the amount of $371,810.67,

claiming a lien against Reilly’s residence. Wells Fargo attached to the proof

of claim a copy of an Adjustable Rate Mortgage Note dated September 11,

2006, for $396,500.00, naming Reilly as the borrower and World Savings

Bank, FSB, its successors, and/or assignees, as the lender. The note’s

signature page includes a signature for the borrower. On the back of the

signature page is an endorsement by Brenda Flores as “Vice President of

Loan Documentation,” making the note payable to “Wells Fargo Bank,

N.A., successor by merger with Wells Fargo Bank Southwest, N.A., F/K/A

Wachovia Mortgage, FSB, F/K/A World Savings Bank, FSB.”

Wells Fargo also attached to its proof of claim a deed of trust, which

on its face shows that it was recorded on September 29, 2006 in the Official

Records of Coconino County, as instrument number 3405021. The deed of

trust similarly identifies Reilly as the borrower. And once again World

Savings, its successors, and/or assignees are identified as the lender. The

deed of trust grants the lender a security interest in Reilly’s residence to

secure repayment of Reilly’s promissory note in favor of World Savings.

Wells Fargo further attached to its proof of claim a letter dated

November 19, 2007, from the Office of Thrift Supervision (“OTS”) to John

A. Stoker as Vice President and Assistant General Counsel of Wachovia

Corporation. The letter reflects OTS’s approval of World Savings’

amendment of its charter and bylaws to change its name to Wachovia

4 Mortgage, FSB, effective as of December 31, 2007.

The final document attached to the Proof of Claim is a Certification

by the Office of Comptroller of the Currency (“OCC”) dated November 1,

2009, certifying the merger of Wachovia Mortgage with and into Wells

Fargo Bank, National Association, effective as of November 1, 2009.

Reilly commenced an adversary proceeding against Wells Fargo to

determine the validity, priority or extent of Wells Fargo’s lien. In relevant

part, Reilly’s original four-page complaint alleged that “Wells Fargo fails to

provide any documentation whatsoever that supports its allegation that it

is a secured creditor.” As Reilly phrased it, because the September 2006

deed of trust identified World Savings as the lender, “Wells Fargo is

required to show proof of assignment of mortgage, and has not.” In

addition, Reilly alleged that the discharge she received in her 2011

bankruptcy case extinguished both Wells Fargo’s lien and the underlying

debt: “Wells Fargo admits to the discharge. This action reflects that

Plaintiff’s debt has been eliminated. Therefore defendant is not a creditor.”

Wells Fargo filed a motion to dismiss under Civil Rule 12(b)(6). Reilly

filed an opposition to the motion to dismiss but also filed a first amended

complaint. In her first amended complaint, Reilly included a host of

additional allegations. Many related to World Savings’ alleged practice of

securitizing the loans it originated. Other allegations effectively asserted

that, absent proof of a recorded assignment of deed of trust, Wells Fargo

5 could not establish that it was World Savings’ successor with respect to the

security interest in Reilly’s residence. Reilly also alleged that the security

interest in her residence was discharged by her 2011 bankruptcy.3 In sum,

though the first amended complaint contained numerous additional

allegations, its gravamen was not markedly different from the original

complaint. Both complaints focused on the purported need of Wells Fargo

to produce a recorded assignment of the deed of trust and the effect of the

discharge in Reilly’s 2011 case.

In response to the first amended complaint, Wells Fargo filed its

second motion to dismiss. Wells Fargo argued that it was Wachovia’s

successor by merger and that Wachovia was the same entity as World

Savings by virtue of a name change. According to Wells Fargo, the

documents attached to its proof of claim established that it was the

successor in interest to World Savings, and lienholder of record with

respect to Reilly’s residence as a result of the recorded deed of trust. As for

the effect of Reilly’s prior chapter 7 discharge, Wells Fargo cited Johnson v.

Home State Bank,

(1991), for the proposition that the lien against

Reilly’s residence survived the discharge of the underlying debt.

Reilly did not file a formal opposition to the second motion to

dismiss. But she did file a motion to strike. She claimed that the second

3 Reilly admitted in her first amended complaint that, in September 2006, she obtained a mortgage from World Savings encumbering her residence.

6 motion to dismiss was untimely filed and contravened Civil Rule 12(g)’s

prohibition against successive motions to dismiss. She also directly

challenged each of the assertions Wells Fargo made in its second motion to

dismiss.

Reilly filed a motion for an order to show cause the same day that she

filed her motion to strike. In relevant part, Reilly insisted that Wells Fargo

needed to present evidence to authenticate the documents it had attached

to its proof of claim.

Reilly additionally filed a motion for judgment on the pleadings. This

motion largely reiterated all of the points Reilly had made in her other

papers filed in the adversary proceeding.

On June 21, 2019, the bankruptcy court held a hearing on all of the

above-referenced motions. The bankruptcy court specifically rejected both

of Reilly’s foundational legal theories underlying her first amended

complaint. The court ruled that a recorded assignment of the deed of trust

was unnecessary in light of World Savings’ name change to Wachovia and

Wachovia’s merger into Wells Fargo. The court further ruled that Wells

Fargo’s lien survived Reilly’s prior chapter 7 discharge. Based on these

rulings, the court granted Wells Fargo’s second motion to dismiss and

denied all of Reilly’s pending motions.

Reilly then filed a motion for reconsideration under Rule 9023. In the

reconsideration motion, Reilly reiterated the points she had made in her

7 prior papers.

On July 15, 2019, the bankruptcy court entered an order granting the

second motion to dismiss and denying Reilly’s motions. Reilly timely

appealed.

JURISDICTION

The bankruptcy court had jurisdiction pursuant to

and 157(b)(2)(B) and (K). We have jurisdiction under

.

ISSUES

1. Whether the bankruptcy court committed reversible error when it

dismissed Reilly’s first amended complaint without leave to amend?

2. Whether the bankruptcy court abused its discretion when it denied

Reilly’s reconsideration motion?

STANDARDS OF REVIEW

We review de novo the bankruptcy court’s order granting a Civil

Rule 12(b)(6) motion to dismiss. See Camacho v. Bridgeport Fin. Inc.,

(9th Cir. 2005). When we review a matter de novo, we consider

the matter anew, as if not previously decided by the bankruptcy court.

Mele v. Mele (In re Mele),

(9th Cir. BAP 2013).

Generally speaking, we review the bankruptcy court’s denial of leave

to amend for an abuse of discretion. Reddy v. Litton Indus., Inc.,

(9th Cir. 1990). We also review the denial of a Rule 9023 motion for

an abuse of discretion. Dicker v. Dye (In re Edelman),

(9th

8 Cir. BAP 1999).

The bankruptcy court abuses its discretion when its decision is based

on an incorrect rule of law or on factual findings that are clearly erroneous.

United States v. Hinkson,

, 1261–63 (9th Cir. 2009) (en banc).

DISCUSSION

A. Civil Rule 12(b)(6) Standards.

A Civil Rule 12(b)(6) dismissal motion can challenge a complaint in

two different ways: (1) whether the complaint presents any cognizable

legal theories; and (2) whether the complaint contains sufficient factual

allegations that, if accepted as true, support those legal theories. See Johnson

v. Riverside Healthcare Sys., LP,

, 1121–22 (9th Cir. 2008). In

other words, “for a complaint to survive a motion to dismiss, the

non-conclusory ‘factual content’ and reasonable inferences from that

content, must be plausibly suggestive of a claim entitling the plaintiff to

relief.” Moss v. U.S. Secret Serv.,

(9th Cir. 2009) (citing

Ashcroft v. Iqbal,

(2009)).

Thus, the plaintiff must allege “sufficient factual matter, accepted as

true, to state a claim for relief that is plausible on its face.” Iqbal,

(citing Bell Atl. Corp. v. Twombly,

(2007)) (internal

quotation marks omitted). A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is [legally] liable for the misconduct alleged.”

9

(emphasis added). The plausibility determination is a “context-specific

task” that requires the court “to draw on its judicial experience and

common sense.”

When the “well-pleaded facts” do not enable the court

to reasonably infer “more than the mere possibility of misconduct,” the

complaint does not sufficiently allege that the plaintiff is entitled to relief.

Generally, courts must accept the well pled factual allegations of the

complaint as true. Newcal Indus., Inc. v. Ikon Office Sols.,

, 1043

n.2 (9th Cir. 2008). However, courts should not accept as true conclusory

allegations or statements of the law cast as factual allegations. See Twombly,

550 U.S. at 555–56. Nor should the court accept as true “unwarranted

deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig.,

(9th Cir. 2008).

There is another important exception to the rule of accepting a

complaint’s factual allegations as true. Though the Civil Rule 12(b)(6)

inquiry generally is limited to the allegations set forth in the complaint, the

court is permitted to consider items properly subject to judicial notice.

United States v. Ritchie,

(9th Cir. 2003). A court may take

judicial notice of facts “not subject to reasonable dispute” because they are

either “(1) generally known within the territorial jurisdiction of the trial

court or (2) capable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.

10 201(b). When the complaint’s allegations are at odds with matters that are

properly the subject of judicial notice, the court need not accept those

allegations as true when considering a motion to dismiss. Lazy Y Ranch Ltd.

v. Behrens,

(9th Cir. 2008).

B. Reilly’s Legal Theories In Support Of Her Claims For Relief.

In support of her dismissed claims for relief, Reilly’s appeal brief

principally focuses on two legal theories. First, she claims that Wells Fargo

should have but failed to record an assignment of the deed of trust she

executed in favor of World Savings. And second, she claims that, in her

2011 bankruptcy case, her chapter 7 discharge extinguished both the lien

and the underlying debt. We will address each of these arguments in turn.

1. Failure To Perfect Assignment Of The Deed Of Trust.

Reilly primarily argues that Wells Fargo is not a secured creditor and

cannot assert or enforce its lien against her residence because it never

perfected an assignment of the deed of trust she executed in favor of World

Savings. According to Reilly, when a security interest in real property is

acquired by assignment, the assignee must perfect its security interest by

recording an assignment of mortgage or deed of trust.

Reilly’s lack of perfection argument is factually unfounded. Wells

Fargo did not take its interest in the deed of trust by assignment. Wells

Fargo succeeded to its interest in Wachovia’s assets as the result of

Wachovia’s merger into Wells Fargo. The occurrence of this merger is not

11 subject to reasonable dispute and hence is properly subject to judicial

notice. Numerous courts have recognized that this merger occurred.4 And

the copy Wells Fargo submitted of the official OCC certificate of merger

similarly is subject to judicial notice. Graybill, 953 F. Supp. 2d at 1093 n.2;

Ferguson v. Wells Fargo Bank, N.A., Case No. 2:12-2944 WBS,

, at *2–3 (E.D. Cal. Feb. 8, 2013); Perez v. Wachovia Mortg., Case No. C

12-03407 RS,

, at *2 (N.D. Cal. Nov. 29, 2012).

It is well settled that, when a merger occurs, the surviving entity

acquires the assets and liabilities of the constituent entity. 15 William M.

Fletcher, Fletcher Cyclopedia of the Law of Corporations § 7082 (Sept. 2019

update) (“When corporations merge, the surviving corporation succeeds to

both the rights and obligations of the constituent corporations.”) (citing

numerous cases); see also Carroll v. PNC Bank, Case No. A-13-CV-657 LY,

, at *2 (W.D. Tex. June 24, 2014), report and

recommendation adopted, Case No. A-13-CV-657-LY,

4 See, e.g., Campidoglio LLC v. Wells Fargo & Co.,

(9th Cir. 2017) (“in 2008, Wells Fargo acquired Wachovia, including Wachovia Mortgage”); Kuzack v. Wells Fargo Bank, NA,

(9th Cir. 2015) (identifying Wachovia as Wells Fargo’s “predecessor-in-interest”); Graybill v. Wells Fargo Bank, N.A.,

, 1093 n.2 (N.D. Cal. 2013) (“Wachovia [Mortgage] converted to a national bank called Wells Fargo Bank Southwest, NA, which then merged with and into Wells Fargo Bank, NA.); Toromanova v. Wells Fargo Bank, N.A., Case No. 12-CV-00328-GMN-CWH,

, at *1 (D. Nev. June 25, 2012) (“Wachovia Mortgage merged with and into Wells Fargo Bank, N.A. and is now known as Wachovia Mortgage, a Division of Wells Fargo Bank, N.A.”).

12 (W.D. Tex. Aug. 4, 2014) (holding that all rights of the merger parties were

vested in the surviving entity without the need for any formal assignment);

SE Prop. Holdings, LLC v. Sandy Creek II, LLC,

(S.D. Ala. 2013) (same).

In turn, Wachovia was the successor to World Savings by virtue of a

name change. The letter Wells Fargo provided from the OTS reflecting this

fact also is properly the subject of judicial notice. Graybill,

& n.2; Ferguson,

, at *1–4. When a corporation changes

names, it is still the same corporation, with all the same rights and

liabilities. 6 William M. Fletcher, Fletcher Cyclopedia of the Law of

Corporations § 2456 (Sept. 2019 update).

In her first amended complaint, Reilly acknowledges that she

obtained a “mortgage” from World Savings. For this reason, she does not

deny executing the note and deed of trust in favor of World Savings.

Rather, she challenges Wells Fargo’s interest in these documents. But Wells

Fargo has provided a clear and indisputable line of succession from World

Savings to Wachovia, and then to Wells Fargo – without the need for any

formal assignment of assets from either World Savings or Wachovia to

Wells Fargo. Accordingly, to the extent Reilly relies on the absence of a

perfected assignment of deed of trust to support her claim for relief against

Wells Fargo, her claim for relief is devoid of merit.

13 2. Effect Of Reilly’s Chapter 7 Discharge On Wells Fargo’s Lien.

Alternately, Reilly contends that, as result of the discharge she

received in her chapter 7 bankruptcy, the lien on her residence was

extinguished.5 To support her contention, Reilly relies on Johnson v. Home

State Bank,

(1991). But Reilly’s reliance on Johnson is misplaced.

Johnson held that the chapter 7 discharge extinguishes the debtor’s personal

liability for the underlying debt, but the creditor’s rights under the

mortgage or deed of trust against the collateral securing the debt survive

and pass through bankruptcy.

.

Indeed, Johnson is directly on point against Reilly. In Johnson, the

debtor had, similar to Reilly, received a chapter 7 discharge. The Supreme

Court was confronted with the question of whether the secured creditor’s

lien rights survived the discharge and, if so, whether those lien rights

constituted a “claim” that could be scheduled and adjusted in the debtor’s

subsequent chapter 13 bankruptcy case.

. The Supreme Court

5 Reilly further asserts that she asked Wells Fargo in 2011 to enter into a reaffirmation agreement with her, but Wells Fargo refused. Essentially, Reilly seems to believe that Wells Fargo’s lien against her residence only could have survived her 2011 chapter 7 discharge if a reaffirmation agreement had been entered into. This is not correct. “Since liens ordinarily survive bankruptcy regardless of reaffirmation, the reaffirmation of a secured debt has the main effect of preserving the debtor’s personal liability for the debt.” In re Roderick,

(Bankr. E.D. Cal. 2010). While we agree that Reilly’s personal liability to Wells Fargo was discharged in her first bankruptcy, the existence or absence of a reaffirmation agreement under § 524(c) does not affect the survival of the lien.

14 held that the secured creditor’s lien rights survived the chapter 7 discharge

and that those lien rights constituted a “claim” for bankruptcy purposes

that was subject to adjustment in the subsequent chapter 13. Id. at 84-87. In

so holding, Johnson explained that the “bankruptcy discharge

extinguishe[d] only one mode of enforcing a claim—namely, an action

against the debtor in personam—while leaving intact another—namely, an

action against the debtor in rem.” Id. at 84.

In short, Reilly’s argument that Wells Fargo’s lien was extinguished

when she received her prior chapter 7 discharge has no merit. The

argument is based on her misreading of Johnson, which actually held that

the lien survives the discharge of the underlying debt.

C. Reilly’s Other Arguments.

Most of Reilly’s other arguments on appeal are procedural in nature

and have little or nothing to do with the substantive legal theories she

asserted in her complaint, which theories all sought to invalidate Wells

Fargo’s lien. She asserts that the bankruptcy court should have granted her

motion for judgment on the pleadings and her motion to strike Wells

Fargo’s second motion dismiss. As Reilly reasons, the bankruptcy court

should have granted her motions for two reasons: (1) Wells Fargo’s second

motion to dismiss constituted an impermissible successive motion to

dismiss in contravention of Civil Rule 12(g)(2); and (2) the second motion

to dismiss was untimely.

15 Neither of these reasons is well founded. When Reilly filed her first

amended complaint, Well Fargo needed to – and was entitled to – respond

to it. See Civil Rule 15(a)(3); see also Virginia A. Phillips, et al., Rutter Group

Prac. Guide: Fed. Civ. P. Before Trial ¶ 6:22 (Apr. 2019 Update) (“Rutter

Group”) (“If plaintiff amends the complaint, defendant must respond to

the amended complaint (unless the court allows the original answer to

stand as answer to the amended complaint).”). Under Civil Rules 12(g)(2)

and (h)(1), a defendant may forfeit a defense under Civil Rules 12(b)(2)-(5)

if it was available but not raised in the defendant’s first motion to dismiss.

See Schnabel v. Lui,

(9th Cir. 2002); see also Rutter Group

at ¶ 9:25.10 (“The filing of an amended complaint does not revive the right

to present defenses waived prior to the amendment if such defenses were

available prior to the amendment.”).

Reilly filed her first amended complaint rather than oppose the

original motion to dismiss. As a result, the court never ruled upon the

original motion. Wells Fargo had the right to respond to the first amended

complaint under Civil Rule 15(a)(3). It filed the second motion to dismiss

after the first amended complaint mooted the original motion. The second

motion to dismiss largely incorporated the original motion. In this regard,

Wells Fargo did not seek to litigate successive motions but to have its

original defenses decided for the first time. We thus reject Reilly’s

argument based on Civil Rule 12(g).

16 As for Reilly’s timeliness argument, she correctly points out that

Wells Fargo did not timely file its second motion to dismiss. It was not filed

within either fourteen days after service of Reilly’s first amended

complaint, or within the time to respond to Reilly’s original complaint. See

Civil Rule 15(a)(3). Even so, this does not mean that Wells Fargo thereafter

was prohibited from filing its second motion to dismiss. If Reilly sought to

prohibit Well Fargo from responding to her first amended complaint, her

recourse was to seek entry of default. See Civil Rule 55; see also Rutter

Group at ¶ 6:42 (“Entry of a defendant's default cuts off his or her right to

appear in the action or to present evidence.”). But Reilly did not do so. As a

result, Wells Fargo permissibly filed its belated second motion to dismiss,

and the bankruptcy court was not obliged to strike it based on Reilly’s

untimeliness argument. See Sugarfina, Inc. v. Sweet Pete's LLC, Case No.

17-CV-4456-RSWL-JEM,

, at *3 (C.D. Cal. Sept. 25, 2017)

(holding that default cannot be entered after defendant has a filed a Civil

Rule 12(b)(6) motion to dismiss shortly after the deadline for responsive

pleadings); Aguilera v. Bigham, Case No. 2:15-cv-1781-KJM-EFB PS,

, at *1 (E.D. Cal. Aug. 30, 2016) (same).

Accordingly, Reilly has not demonstrated that the bankruptcy court

committed reversible error when it denied her motion for judgment on the

pleadings and her motion to strike Wells Fargo’s second motion to dismiss.

Reilly next argues that the bankruptcy court should have held an

17 evidentiary hearing and should have required Wells Fargo to authenticate

the documents attached to its proof of claim. In support of these

arguments, Reilly invokes Rule 3001 and Evidence Rule 901(a).6 Rule 3001

specifies the form and content required for filing a proof of claim. Among

other things, this Rule provides that claims based on a writing should

include a copy of that writing or writings. Rule 3001(c)(1). Under Rule 3001,

a claimant also must submit additional information when the claim asserts

a security interest in the debtor’s principal residence. See Rule 3001(c)(2)(C);

Official Form B410.

On its face, Wells Fargo’s Proof of Claim satisfies the form and

content requirements set forth in Rule 3001. Consequently, Wells Fargo

was entitled to the presumption of prima facie validity of its claim in the

amount stated. Rule 3001(f). Therefore, if the bankruptcy court had held a

claim objection evidentiary hearing, Reilly would have needed to present

evidence “show[ing] facts tending to defeat the claim by probative force

equal to that of the allegations of the proofs of claim themselves.” Lundell v.

Anchor Const. Specialists, Inc.,

, 1039 (9th Cir. 2000). In this

instance, Reilly’s first amended complaint did not allege facts that, even if

accepted as true, would have been sufficient to overcome the presumption

6 Reilly actually cited Evidence Rule 902, which governs self-authenticating documents. Instead of Evidence Rule 902, Reilly presumably meant to invoke Evidence Rule 901(a), which sets forth the general authentication requirement for documentary evidence.

18 of the validity of Wells Fargo’s claim.

As for Evidence Rule 901(a), it provides that a proponent of

documentary evidence generally must “produce evidence sufficient to

support a finding that the item is what the proponent claims it is.”

Reilly has not cited any authority indicating why either of these rules

pertain to a Civil Rule 12(b)(6) motion to dismiss. Nor are we aware of any

such authority. Indeed, other than matters properly subject to judicial

notice, evidence plays no role in the resolution of a motion to dismiss

because such motions examine only the sufficiency of allegations and legal

theories set forth in the complaint. They do not involve the presentation of,

or objections to, evidence. See Johnson v. Riverside Healthcare Sys., LP,

.

Put differently, there was no need for the bankruptcy court to hold an

evidentiary hearing or to require Wells Fargo to authenticate either the

OCC certificate of merger or the OTS letter regarding World Savings’ name

change. Those documents and their contents reflected official acts of the

executive branch of the United States and as such the bankruptcy court

properly took judicial notice of the truth of those matters. Graybill,

n.2; Ferguson,

, at *2. Similarly, the duly

recorded deed of trust that Reilly executed in favor of World Savings is

part of the official records of Coconino County, is properly subject to

judicial notice, and the bankruptcy court properly took judicial notice of

19 that matter as well. See Graybill,

n.2 (taking judicial

notice of recorded deed of trust); Perez,

, at *2 (same).

In short, neither Reilly's authentication argument nor her evidentiary

hearing argument justify reversal of the order granting Wells Fargo's

motion to dismiss.

Finally, Reilly claims that the bankruptcy court should have granted

her leave to amend. “‘Dismissal without leave to amend is improper,

unless it is clear, upon de novo review, that the complaint could not be

saved by any amendment.’” IntriPlex Techs., Inc. v. Crest Grp., Inc.,

(9th Cir. 2007) (quoting Sparling v. Daou (In re Daou Sys.),

(9th Cir. 2005)). When, as here, the plaintiff is not

represented by counsel, the pro se litigant must be afforded an opportunity

to amend “unless it is clear the deficiencies cannot be cured by

amendment.” McGuckin v. Smith,

, 1057 & n.6 (9th Cir. 1992),

overruled on other grounds by WICKAM Technologies, Inc. v. Miller,

, 1136 (9th Cir. 1997).

Here, there was nothing Reilly could have alleged, consistent with

her existing legal theories and factual allegations, that would have cured

the fatal defects we have identified above. “In determining whether

amendment would be futile, the court examines whether the complaint

could be amended to cure the defect requiring dismissal ‘without

contradicting any of the allegations of [the] original complaint.’” Cady v.

20 Anthem Blue Cross Life & Health Ins. Co.,

(N.D.

Cal. 2008) (quoting Reddy,

). Given the establishment of

Wells Fargo’s interest in the recorded deed of trust, and the well

established rule that liens survive discharge within bankruptcy, Reilly

could not assert any set of facts to cure these deficiencies. Thus, the

bankruptcy court did not abuse its discretion when it dismissed Reilly’s

first amended complaint without leave to amend.

Reilly also appealed from the bankruptcy court’s order denying her

motion for reconsideration under Rule 9023, which incorporates Civil Rule

59(e). Even though Reilly’s appeal brief did not make any arguments with

respect to the denial of this motion, we have reviewed Reilly’s

reconsideration motion. In large part, it merely reiterated the positions she

took in all of her other papers and motions that she filed in response to

Wells Fargo’s second motion to dismiss. Under these circumstances, the

bankruptcy court did not commit reversible error when it denied the

reconsideration motion. A Rule 9023 motion should not be used to

relitigate matters already decided. In re Upland Partners, Case No. 97-03746,

, at *1 (Bankr. D. Haw. Dec. 15, 2005); see also In re Mannie,

(Bankr. N.D. Cal. 2003) (“A motion to reconsider should

not be used to ask the court to rethink what the court had already thought

through—rightly or wrongly —or to reiterate arguments previously

raised”) (citations and internal quotations omitted) .

21 CONCLUSION

For the reasons set forth above, we AFFIRM the bankruptcy court’s

order dismissing Reilly’s first amended complaint without leave to amend,

and its order denying Reilly’s reconsideration motion.

22