David Turner v. Wells Fargo Bank ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE ROSANNA MAC TURNER, No. 15-60046
Debtor,
BAP No.
14-1139
DAVID G. TURNER; ROSANNA MAC
TURNER,
Appellants, OPINION
v.
WELLS FARGO BANK NA; CITIGROUP
GLOBAL MARKETS REALTY CORP.;
U.S. BANK, as Trustee for the
Citigroup Mortgage Loan Trust Inc.,
Mortgage Pass-Through Certificates,
Series 2005-4; CITIMORTGAGE INC.,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Dunn, and Taylor, Bankruptcy Judges, Presiding
2 IN RE TURNER
Submitted April 19, 2017*
San Francisco, California
Filed June 15, 2017
Before: Richard A. Paez and Sandra S. Ikuta, Circuit
Judges, and Susan R. Bolton, ** District Judge.
Opinion by Judge Bolton
SUMMARY ***
Bankruptcy
The panel affirmed the Bankruptcy Appellate Panel’s
decision affirming the bankruptcy court’s dismissal of an
adversary proceeding.
After the bankruptcy court granted relief from the
automatic stay to allow a foreclosure to proceed, the debtors
filed an adversary proceeding alleging that the transfer of a
deed of trust for their property to a mortgage-backed security
trust, which was securitized pursuant to a Pooling and
Servicing Agreement, was void and a breach of the
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Susan R. Bolton, United States District Judge for
the District of Arizona, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
IN RE TURNER 3
Agreement because it was not effectuated within the ninety-
day period established by the Agreement.
The panel held that the debtors failed to state a claim for
wrongful foreclosure under California law. Under Yvanova
v. New Century Mortg. Corp., 365 P.3d 845 (Cal. 2016), a
home loan borrower has standing to claim a nonjudicial
foreclosure was wrongful because an assignment by which
the foreclosing party purportedly took a beneficial interest in
the deed of trust was not merely voidable but void. The
panel held that the fact that the assignments of the deed of
trust were made well after the ninety-day timeframe merely
rendered the transfer voidable, not void. Accordingly the
debtors lacked standing to claim wrongful foreclosure.
The panel held that the debtors did not properly allege a
claim for breach of contract or breach of the implied
covenant of good faith and fair dealing because, as
borrowers, they were not third-party beneficiaries of the
Pooling and Servicing Agreement.
The panel held that the debtors did not state a claim for
breach of the express terms of the deed of trust in the
execution of the notice of default, or for breach of the
implied covenant of good faith and fair dealing. They also
failed to state a claim for violation of Cal. Civ. Code
§ 2923.5 or for unfair competition under Cal. Bus. & Prof.
Code 17200.
4 IN RE TURNER
COUNSEL
Michael Yesk, Pleasant Hill, California, for Appellants.
Bernard J. Kornberg, Mark D. Lonergan, and Jan T. Chilton,
Severson & Werson, San Francisco, California, for
Appellees.
OPINION
BOLTON, District Judge:
This appeal arises from the judgment of the Bankruptcy
Appellate Panel (“BAP”) affirming the bankruptcy court’s
order granting Appellees’ 1 motion to dismiss Rosanna Mac
Turner’s and David Turner’s (“Appellants” or “Turners”)
Adversary Complaint without leave to amend.
The Turners are the borrowers and Trustors on a Deed of
Trust (“DOT”) for residential property in Livermore,
California. The DOT was recorded on May 16, 2005 naming
Fidelity National Title Insurance Company as Trustee and
Appellee Wells Fargo, N.A. (“Wells Fargo”) as both Lender
and Beneficiary. On or around August 2005, Wells Fargo
sold the DOT along with the Turners’ promissory note to
Citigroup Global Markets Realty Corp. (“Citigroup”).
Citigroup deposited them into a mortgage-backed security
trust (the “CMLTI Trust”), which was securitized pursuant
to a Pooling and Servicing Agreement (“PSA”) and named
1
Appellees are Wells Fargo Bank, N.A.; Citigroup Global Markets
Realty Corp.; U.S. Bank N.A. as Trustee for the Citigroup Mortgage
Loan Trust, Inc., Mortgage Pass-Through Certificates, Series 2005-4;
and Citimortgage, Inc.
IN RE TURNER 5
Appellee U.S. Bank, N.A. (“U.S. Bank”) as Trustee. The
CMLTI Trust, a tax-exempt real estate mortgage investment
conduit trust, required the transfer of all assets to the trust
within ninety days of the Trust Pool’s August 29, 2005 start
date, but the DOT was not transferred by Wells Fargo to
Citigroup until May 12, 2011 and by Citigroup to U.S. Bank
as Trustee for the CMLTI Trust until September 19, 2012.
NBS Default Services (“NBS”) recorded a Notice of
Default on the property on February 10, 2012 as Trustee or
Agent for the Beneficiary. Citigroup recorded a Substitution
of Trustee naming NBS as Trustee on May 2, 2012. 2 On May
16, 2012, NBS recorded a Notice of Trustee’s Sale.
The Turners filed for bankruptcy on June 4, 2012. When
the Turners did not pay Wells Fargo as required by their
approved bankruptcy plan, U.S. Bank sought and was
granted relief from the automatic stay to proceed with
foreclosure. The Turners then filed this adversary
proceeding. The Turners allege that the transfer of the DOT
to the CMLTI Trust is void and is a breach of the PSA
because it was not effectuated within the ninety-day period
established by the PSA. In addition, they assert breach of the
DOT and violations of California law.
I.
We have jurisdiction to hear this appeal pursuant to 28
U.S.C. § 158(d)(1), which provides appellate jurisdiction
over the final decisions and judgments of the BAP. We
review decisions of the BAP de novo. Aalfs v. Wirum (In re
2
Neither party disputes that the Substitution of Trustee was recorded
on May 2, 2012 as alleged in the Adversary Complaint, and that fact is
assumed true for purposes of the Motion to Dismiss.
6 IN RE TURNER
Straightline Invs., Inc.), 525 F.3d 870, 876 (9th Cir. 2008).
We review the bankruptcy court’s decision to dismiss
Appellants’ complaint for failure to state a claim de novo.
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,
1040 (9th Cir. 2011). We also review the bankruptcy court’s
decision to deny the Turners leave to amend their complaint
for abuse of discretion, but consider de novo whether the
complaint is susceptible to amendment. Thinket Ink Info.
Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061
(9th Cir. 2004). Two questions are presented on appeal: 3
(1) whether the bankruptcy court correctly concluded that
the Turners’ Adversary Complaint failed to state a claim and
(2) whether the bankruptcy court erred in denying the
Turners leave to amend. 4
For the reasons discussed below, we affirm.
3
The Turners also ask us to take judicial notice of two documents:
(1) the California Supreme Court docket for Keshtgar v. U.S. Bank, No.
B246193, and (2) the Substitution of Trustee recorded by Citigroup on
May 2, 2012. We DENY the motion as moot.
4
Appellants appeal the bankruptcy court’s order dismissing five of
their eight causes of action: wrongful foreclosure, breach of express
agreement, breach of the implied covenant of good faith, violation of
California Civil Code § 2923.5, and violation of the California Unfair
Competition Law. The Turners’ failure to appeal the bankruptcy court’s
order on the remaining three causes of action—slander of title, violation
of 18 U.S.C. § 1962 (“RICO”) and injunctive relief—constitutes waiver
of those issues on appeal. Indep. Towers of Wash. v. Washington,
350 F.3d 925, 929 (9th Cir. 2003) (“[W]e cannot ‘manufacture
arguments for an appellant’ and therefore we will not consider any
claims that were not actually argued in appellant’s opening brief.”)
(citation omitted).
IN RE TURNER 7
II.
A.
First, we consider whether the bankruptcy court correctly
determined that the Turners failed to state a claim. As the
Turners have alleged multiple claims, we have grouped them
as follows: (1) Wrongful Foreclosure, (2) Breach of Express
Agreement and the Implied Covenant of Good Faith and Fair
Dealing Under the PSA, (3) Breach of Express Agreement
and the Implied Covenant of Good Faith and Fair Dealing
under the DOT, (4) Violation of California Civil Code
§ 2923.5 (“Section 2923.5”), and (5) Violation of
California’s Business and Professions Code § 17200 (the
“Unfair Competition Law” or “UCL”). We address each in
turn.
1.
“[A] home loan borrower has standing to claim a
nonjudicial foreclosure was wrongful because an assignment
by which the foreclosing party purportedly took a beneficial
interest in the deed of trust was not merely voidable but
void.” Yvanova v. New Century Mortg. Corp., 365 P.3d 845,
861 (Cal. 2016). “Unlike a voidable transaction, a void one
cannot be ratified or validated by the parties to it even if they
so desire.” Id. at 856.
Here, the Turners argue that the DOT assignments are
void and not voidable. They primarily rely on the California
Court of Appeal’s decision in Glaski v. Bank of America,
160 Cal. Rptr. 3d 449 (Ct. App. 2013), in which it interpreted
New York law. The Second Circuit and New York state
courts, however, have rejected Glaski’s interpretation of
New York law. See Wells Fargo Bank, N.A. v. Erobobo,
9 N.Y.S.3d 312 (N.Y. App. Div. 2015) (reversing the trial
8 IN RE TURNER
court decision relied upon by Glaski); Rajamin v. Deutsche
Bank Nat’l Trust Co., 757 F.3d 79, 88–89 (2d Cir. 2014).
Following these decisions, three California Courts of Appeal
have held that “such an assignment is merely voidable.”
Saterbak v. JP Morgan Chase Bank, N.A., 199 Cal. Rptr. 3d
790, 796 (Ct. App. 2016), reh’g denied (Apr. 11, 2016),
review denied (July 13, 2016) (internal quotation marks
omitted) (“[T]he weight of New York authority is contrary
to plaintiffs’ contention that any failure to comply with the
terms of the [pooling and servicing agreements] rendered
defendants’ acquisition of plaintiffs’ loans and mortgages
void as a matter of trust law;” “an unauthorized act by the
trustee is not void but merely voidable by the beneficiary.”)
(second alternation in original) (quoting Rajamin, 757 F.3d
at 88–89); accord Mendoza v. JP Morgan Chase Bank, N.A.,
212 Cal. Rptr. 3d 1, 8–9 (Ct. App. 2016); Yhudai v. Impac
Funding Corp., 205 Cal. Rptr. 3d 680, 684–85 (Ct. App.
2016). The Turners’ argument to the contrary is unavailing:
the fact that the assignments of the DOT were made well
after the ninety-day timeframe, merely rendered the transfer
voidable, not void. As a result, the district court properly
dismissed the Turners’ wrongful foreclosure claim for
failure to state a claim.
2.
The Turners, again relying on Glaski, argue that they are
third-party beneficiaries of the PSA and therefore properly
alleged a claim for breach of contract or breach of the
implied covenant of good faith and fair dealing under the
PSA. But, as numerous California appellate courts have
held, borrowers, like the Turners, are not third-parties
beneficiaries of the PSA. See, e.g., Jenkins v. JP Morgan
Chase Bank, N.A., 156 Cal. Rptr. 3d 912, 927 (Ct. App.
2013) (“As an unrelated third party to the alleged
IN RE TURNER 9
securitization, and any other subsequent transfers of the
beneficial interest under the promissory note, [the borrower]
lacks standing to enforce any agreements, including the
investment trust's pooling and servicing agreement, relating
to such transactions.”), disapproved of on other grounds by
Yvanova, 365 P.3d at 854–55; see also Moran v. GMAC
Mortg., LLC, No. 5:13-CV-04981-LHK, 2014 WL 3853833,
at *5 (N.D. Cal. Aug. 5, 2014) (collecting cases stating that
the viewpoint expressed in Glaski that a borrower is a third-
party beneficiary of a pooling and service agreement is in the
minority and numerous other California appellate courts
have declined to follow it, even where the trust at issue was
organized under New York law). As a result, the district
correctly ruled that the Turners failed to state a claim for
either breach of the express agreement or the related breach
of the implied covenant of good faith and fair dealing under
the PSA.
3.
The Turners next argue that Wells Fargo breached the
express terms of the DOT because it did not execute the
Notice of Default, and that NBS could not record the Notice
of Default because the Notice was issued three months
before NBS was substituted as Trustee. This argument,
however, lacks merit. Wells Fargo was not required by the
express terms of the DOT to execute the Notice of Default,
but rather, it can cause the Trustee to execute a written notice
of default. Here, a substitution of trustee was recorded
naming NBS as Trustee. Therefore, NBS had the authority
to issue the Notice of Default. Cal. Civ. Code § 2934a(d)
(“Once recorded, the substitution shall constitute conclusive
evidence of the authority of the substituted trustee or his or
her agents to act pursuant to this section.”).
10 IN RE TURNER
Relatedly, the Turners argue that Wells Fargo breached
the implied covenant of good faith and fair dealing in the
DOT by obscuring the identity of the true holder of the
beneficial interest making it impossible for them to know to
whom to make their mortgage payments. This claim fails
because the Turners have not alleged that their payments
were not accurately credited, that they sustained any
damages, or that they were not in default. Having failed to
identify any prejudice, the district court properly dismissed
their claims.
4.
The Turners argue that Citigroup and NBS violated
Section 2923.5. A mortgage servicer, mortgagee, trustee,
beneficiary, or authorized agent may not record a notice of
default until either thirty days after initial contact with the
borrower or thirty days after satisfying the due diligence
requirements. Cal. Civ. Code § 2923.5(a)(1)(A). The notice
of default may be signed by “[t]he trustee, mortgagee, or
beneficiary, or any of their authorized agents.” Cal. Civ.
Code § 2924(a)(1).
The Notice of Default was signed by NBS as Trustee or
Agent of the Beneficiary, Wells Fargo. A substitution of
trustee naming NBS as trustee was later recorded. “The only
remedy for noncompliance with [Section 2923.5] is the
postponement of the foreclosure sale.” Skov v. U.S. Bank
Nat’l Ass’n, 143 Cal. Rptr. 3d 694, 698 (Ct. App. 2012). The
recorded documents conclusively show compliance before
the Notice of Trustee’s Sale was recorded because the
Turners received timely notice from NBS. And, even if NBS
was ineligible to give notice at the time, Section 2923.5
provides no remedy to borrowers, like the Turners. The
district court properly dismissed their claim under Section
2923.5.
IN RE TURNER 11
5.
Finally, the Turners argue that Appellees violated the
UCL by executing and recording “invalid and void
Assignments of Deed of Trust on May 12, 2011 and
September 19, 2012; an invalid Notice of Default on
February 10, 2012; and an invalid Notice of Trustee’s Sale
on May 16, 2012, despite knowing that they were not the
legal trustees or holders of beneficial interest” under the
DOT. The UCL prohibits unlawful, unfair or fraudulent
business acts or practices and unfair, deceptive, untrue or
misleading advertising. Cal. Bus. & Prof. Code § 17200.
“Section 17200 ‘borrows’ violations from other laws by
making them independently actionable as unfair competitive
practices.” Korea Supply Co. v. Lockheed Martin Corp.,
63 P.3d 937, 943 (Cal. 2003). The Turners, however, failed
to establish standing to bring a claim under the UCL.
To have standing to assert a Section 17200 claim, the
plaintiff must “(1) establish a loss or deprivation of money
or property sufficient to qualify as injury in fact, i.e.,
economic injury, and (2) show that that economic injury was
the result of, i.e., caused by, the unfair business practice or
false advertising that is the gravamen of the claim.” Kwikset
Corp. v. Superior Court, 246 P.3d 877, 885 (Cal. 2011)
(emphasis in original). A plaintiff fails to satisfy this
causation requirement if he or she would have suffered “the
same harm whether or not a defendant complied with the
law.” Daro v. Superior Court, 61 Cal. Rptr. 3d 716, 729 (Ct.
App. 2007).
Here, the Turners cannot properly assert standing
because they cannot establish the second prong. The
Turners’ home would have been foreclosed regardless of the
alleged deficiencies in the timing of the assignments of the
DOT and Substitution of Trustee. Appellants have not
12 IN RE TURNER
disputed that they stopped making payments, causing the
loan to go into default. See Jenkins, 156 Cal. Rptr. at 933–
34 (noting that it was plaintiff’s default that triggered the
lawful enforcement of the power of sale clause in the deed
of trust, and the triggering of the power of sale clause
subjected plaintiff’s home to nonjudicial foreclosure, not any
procedural deficiencies in assignment). Therefore, they do
not have standing to pursue a claim under the UCL.
B.
The Turners’ claims for wrongful foreclosure, breach of
contract and the implied covenant of good faith and fair
dealing under the PSA, and violation of the UCL were
correctly dismissed without leave to amend because the
Turners’ lack of standing cannot be cured by amendment.
Furthermore, the district court correctly dismissed the
Turners’ claims for breach of contract and the implied
covenant of good faith and fair dealing under the DOT and
violation of Section 2923.5 without leave to amend because
any amendment would be futile. See Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995). The DOT permitted the
substitution of the Trustee, the Turners cannot allege that
they suffered damages for the alleged breach of the implied
covenant of good faith and fair dealing under the DOT, and
Appellees have complied with Section 2923.5, leaving the
Turners no remedy.
III.
We affirm the dismissal of the Turners’ claims for
(1) wrongful foreclosure, (2) breach of contract and the
implied covenant of good faith and fair dealing under the
PSA, (3) breach of contract and the implied covenant of
good faith and fair dealing under the DOT, (4) violation of
IN RE TURNER 13
Section 2923.5, and (5) violation of the UCL without leave
to amend because any amendment would be futile.
AFFIRMED.