Alma Bell v. Wells Fargo Bank ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 11 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALMA BELL, an individual, No. 14-56861
Plaintiff-Appellant, D.C. No.
2:14-cv-04316-JFW-MRW
v.
WELLS FARGO BANK, NA, FKA MEMORANDUM*
Wachovia Mortgage, FSB, successor by
merger to Wells Fargo Bank Southwest,
N.A.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted October 6, 2016**
Pasadena, California
Before: REINHARDT, OWENS, and FRIEDLAND, Circuit Judges.
Plaintiff Alma Bell appeals the district court’s dismissal under Federal Rule
of Civil Procedure 12(b)(6) of her claims against defendants Wells Fargo Bank and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NDeX West. Bell’s claims relate to an allegedly wrongful nonjudicial foreclosure
proceeding brought against her home in La Habra Heights, California. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
The district court did not err in dismissing Bell’s claim under California
Civil Code § 2924(a)(6). Bell argued that her loan was defectively securitized,
depriving Wells Fargo and NDeX of the beneficial interest in her Deed of Trust
that would be required under § 2924(a)(6) to initiate foreclosure proceedings. But
this section of the statute—added as part of the Homeowner’s Bill of Rights
(“HBOR”)—took effect on January 1, 2013 and is not retroactive. See Cal. Civ.
Code § 2924(a)(6); Myers v. Philip Morris Cos., 50 P.3d 751, 759 (Cal. 2002)
(California statutes do not apply retroactively absent an express retroactivity
provision or clear extrinsic evidence of legislative intent); Saterbak v. JPMorgan
Chase Bank, N.A., 199 Cal. Rptr. 3d 790, 798 (Ct. App. 2016) (HBOR not
retroactive). The Notice of Default underlying Bell’s claim was recorded in
December 2011. Thus, Bell did not state a claim under § 2924(a)(6).
Even if Bell had attempted to plead under the statute in effect at the relevant
time, she still failed to allege sufficient factual support to state a claim. “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
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elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 557 (2007) (citations omitted)). Even though the theory of Bell’s
§ 2924(a)(6) claim is rooted in an allegedly defective securitization, she has not
come forward with any “factual enhancement” to support the assertion that her
note was securitized or assigned, nor has she alleged any facts to support how such
a process was defective. Rather, she simply puts forward bare-bones assertions
that the note was defectively securitized. As a result, her § 2924(a)(6) claim fails
under Iqbal’s pleading standard and was properly dismissed.1
The district court also properly dismissed Bell’s claim under California Civil
Code § 2923.5, which requires lenders to contact borrowers at least thirty days
before filing a notice of default to “assess the borrower’s financial situation and
explore options for the borrower to avoid foreclosure.” Cal. Civ. Code
§ 2923.5(a)(1)-(2) (amended 2013). The only remedy that § 2923.5 provides is
1
In light of these other grounds for affirming the dismissal, this court need not
decide whether California law after Yvanova v. New Century Mortgage Corp., 365
P.3d 845 (Cal. 2016), affords a borrower standing to bring a pre-foreclosure
challenge to the lender’s authority to foreclose based on an allegedly defective
securitization or assignment.
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“obtaining a postponement of an impending foreclosure to permit the lender to
comply with section 2923.5.” Mabry v. Super. Ct., 110 Cal. Rptr. 3d 201, 204 (Ct.
App. 2010), review denied (Aug. 18, 2010). Here, the district court properly
determined that even if there were a violation, Bell had already received the only
remedy available because Wells Fargo had already considered at least two loan
modification applications. See Rossberg v. Bank of Am., N.A., 162 Cal. Rptr. 3d
525, 536 (Ct. App. 2013) (conversations about possible loan modification satisfied
statute). That Bell—not Wells Fargo—initiated the loan modification discussions
does not change this conclusion. See Burton v. NDeX West, LLC, No. B232119,
2012 WL 1267884, at *4 (Cal. Ct. App. 2012) (unpublished) (“The purpose of the
contact requirement is fully satisfied if the contact occurs regardless of who
initiated the contact.”).
The district court also properly dismissed Bell’s claim for quiet title. It held
that this claim was duplicative of her § 2924(a)(6) claim, and thus failed for the
same reasons. Because Bell has not alleged specific facts to support her quiet title
claim, it fails along with her § 2924(a)(6) claim.
The district court did not err in dismissing Bell’s claims under California’s
Unfair Competition Law (“UCL”), Bus. & Prof. Code §§ 17200, et seq. To bring a
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claim under the UCL, a plaintiff must show that her injury comes as a result of the
alleged unfair or unlawful competition. Kwikset Corp. v. Super. Ct., 246 P.3d 877,
887 (Cal. 2011). Bell failed to make her loan payment due in July 2011, before
any of defendants’ allegedly wrongful acts, and that failure is what caused the
foreclosure proceedings. See Jenkins v. JP Morgan Chase Bank, N.A., 156 Cal.
Rptr. 3d 912, 934 (Ct. App. 2013), overruled on other grounds by Yvanova, 365
P.3d at 855-56 (“As Jenkins’s home was subject to nonjudicial foreclosure because
of Jenkins’s default on her loan, which occurred before Defendants’ alleged
wrongful acts, Jenkins cannot assert the impending foreclosure of her home . . .
was caused by Defendants’ wrongful actions.”). Because she did not adequately
plead causation, the district court’s dismissal was proper.
Finally, the district court did not abuse its discretion in denying Bell leave to
amend. She has already amended her complaint twice, and has not specified what
other facts she would add to address the deficiencies in her complaint. See Bowen
v. Oistead, 125 F.3d 800, 806 (9th Cir. 1997).
For the foregoing reasons we AFFIRM.
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