No. 20-3086 ___________________________

David R. Anderson

lllllllllllllllllllllPlaintiff - Appellant

v.

Bank of the West; U.S. Bank, National Association, et al.

lllllllllllllllllllllDefendants - Appellees ____________

Appeal from United States District Court for the District of Nebraska - Omaha ____________

Submitted: October 19, 2021 Filed: January 25, 2022 ____________ Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges. ____________ LOKEN, Circuit Judge.

In 2005, David Anderson obtained a home loan from a predecessor of U.S. Bank, N.A. The loan was secured by a promissory note and trust deed that authorized the lender, as trustee, to sell Anderson’s Lincoln, Nebraska residential property by foreclosure sale in the event of a qualifying breach of the loan. See Neb. Rev. Stat. § 76-1005. In February 2019, U.S. Bank exercised its power as trustee and sold the property at a non-judicial Trustee’s Sale. Bank of the West, which held a separate deed of trust, was the high bidder.

In April 2019, Anderson sued Bank of the West in Nebraska state court, seeking to set aside the Trustee’s Sale. Applying the Supreme Court of Nebraska’s decision in Gilroy v. Ryberg, 667 N.W.2d 544 (Neb. 2003), the District Court of Lancaster County dismissed this claim because Anderson “has not alleged any defects that would render the Trustee’s Sale void or voidable.” Anderson then filed an Amended Complaint adding U.S. Bank as a defendant. U.S. Bank removed the case to the District of Nebraska with Bank of the West’s permission. See 28 U.S.C. §§ 1441, 1446(b)(2)(A).

After removal, U.S. Bank moved to dismiss for failure to state a claim, Anderson filed a Second Amended Complaint (SAC), and U.S. Bank renewed its motion to dismiss. In a series of orders, the district court1 dismissed Anderson’s claims against U.S. Bank and Bank of the West with prejudice and denied his motion for leave to file a Third Amended Complaint (TAC). Anderson appeals those orders. We affirm.

I. Background

The factual basis for Anderson’s claim to set aside the Trustee’s Sale are his allegations that the lenders, U.S. Bank and its predecessors, “prior to the institution and maintenance of any foreclosure activity,” failed to comply with “foreclosure avoidance procedures” required by the federal Fair Debt Collection Practices Act, the Real Estate Settlement Procedures Act, and a federal consent decree referred to as the

1 The Honorable Robert F. Rossiter, Jr., now Chief Judge of the United States District Court for the District of Nebraska.

-2- National Mortgage Settlement2 that were “conditions precedent” to foreclosure by a Trustee’s Sale under Nebraska law. SAC Par. 14-16. In granting U.S. Bank’s motion to dismiss, the district court ruled that, even if properly pleaded and assumed to be true, the above-summarized allegations were insufficient to warrant equitable relief setting aside a non-judicial Trustee’s Sale under Ryberg, the controlling Nebraska precedent. The court ordered Anderson to show cause why Bank of the West should not also be dismissed.

In opposing U.S. Bank’s motion to dismiss, Anderson alternatively asked for leave to amend his SAC. This request is not “construed as a motion for leave to amend.” Wolgin v. Simon, 722 F.2d 389, 394 (8th Cir. 1983). Then, in addition to filing a “perfunctory response” to the court’s order to show cause, Anderson filed a motion for leave to amend that included a proposed TA