Peter Zeppeiro v. Gmac Mortgage, LLC ( 2016 )

FILED
NOT FOR PUBLICATION OCT 05 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER ZEPPEIRO, No. 13-55420
Plaintiff-Appellant, D.C. No. 2:12-cv-05357-ABC-RZ
v.
MEMORANDUM*
GMAC MORTGAGE, LLC,
Defendant,
and
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, as Trustee for Fixed to
Floating Rate Non-Cumulative Preferred
Non-Cumulative Preferred Stock Series 1;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., AKA
MERS,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted September 27, 2016**
Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
Peter Zeppeiro appeals from the district court’s judgment dismissing his
action alleging federal and state law claims related to the foreclosure of his home.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6), and may affirm on any ground supported by the record. Thompson v.
Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
Dismissal of Zeppeiro’s Truth in Lending Act claim under 15 U.S.C.
§ 1641(g) was proper because this provision was not enacted until 2009, years after
the assignment at issue, and this provision does not apply retroactively. See Talaie
v. Wells Fargo Bank, 808 F.3d 410, 411 (9th Cir. 2015) (“15 U.S.C. § 1641(g)
does not apply retroactively.”).
Zeppeiro contends that dismissal of his claim challenging defendants’
standing to foreclose on his property was improper because under the California
Court of Appeal’s decision in Glaski v. Bank of America, National Association 110
Cal. Rptr. 3d 449 (Ct. App. 2013), he may base such a claim on defendants’
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 13-55420
allegedly untimely assignment of his loan into a securitized trust. However, after
the California Supreme Court’s decision in Yvanova v. New Century Mortgage
Corporation, 365 P.3d 945 (Cal. 2016), the California Court of Appeal has held
that an untimely assignment into a securitized trust is not void, but merely
voidable, and that borrowers lack standing to challenge such assignments. See,
e.g., Saterbak v. JPMorgan Chase Bank, N.A., 199 Cal. Rptr. 790, 796 (Ct. App.
2016). Accordingly, dismissal of Zeppeiro’s claim challenging the foreclosure of
his home on this ground was proper.
The district court did not abuse its discretion by denying Zeppeiro leave to
amend because amendment would have been futile. See McQuillion v.
Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004) (“The district court did not
err in denying leave to amend because amendment would have been futile.”); see
also Ramirez v. Galaza, 334 F.3d 850, 854 (9th Cir. 2003) (“We review the denial
of leave to amend for an abuse of discretion.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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