James Herman v. U.S. Bank , 591 F. App'x 630 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 04 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES HERMAN, an individual, No. 13-55820
Plaintiff - Appellant, D.C. No. 2:13-cv-00233-JFW-RZ
v.
MEMORANDUM*
US BANK NA, as Trustee for the benefit
of Harbor View 2005-1 Trust Fund, a
National Association and BAC HOME
LOANS SERVICING LP, a Texas Limited
Partnership,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted February 2, 2015**
Pasadena, California
Before: D.W. NELSON, BYBEE, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Appellant James Herman appeals the district court’s dismissal of his
complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. We have jurisdiction under 28 U.S.C. § 1291.
Herman does not contest that he is in default on his mortgage or that the
original lender could foreclose on his home. Instead, he premises his wrongful
foreclosure claim on “asserted defects in the chain of assignments and the absence
of ‘lawful ownership’ of the note” by the defendants. Debrunner v. Deutsche Bank
Nat’l Trust Co., 204 Cal. App. 4th 433, 444 (2012). Such defects are insufficient
to show prejudice, see id. at 443–44, and Herman failed to plead any other facts
demonstrating prejudice. Therefore, the district court did not err in dismissing
Herman’s claim for wrongful foreclosure. See Herrera v. Fed. Nat’l Mortg. Ass’n,
205 Cal. App. 4th 1495, 1507 (2012).
For the first time on appeal, Herman argues that the defendants breached
their duty of care by failing to provide an adequate response to his inquiries
regarding a loan modification. Herman waived this theory of relief because he
failed to raise this claim in his complaint or to the district court. See Turnacliff v.
Westly, 546 F.3d 1113, 1120 (9th Cir. 2008). Even if we were to address the
merits of this claim, we would affirm the district court, because the defendants did
not agree to review and process Herman’s loan modification and therefore did not
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owe him a duty of care. See Lueras v. BAC Home Loans Servicing, LP, 221 Cal.
App. 4th 49, 67 (2013); see also Alvarez v. BAC Home Loans Servicing, L.P., 228
Cal. App. 4th 941, 948–49 (2014) (finding a duty where “defendants allegedly
agreed to consider modification of the plaintiffs’ loans”).
AFFIRMED.
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