Harout Bagdasaryan v. Bayview Loan Servicing, LLC ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAROUT BAGDASARYAN; et al., No. 17-56461
Plaintiffs-Appellants, D.C. No.
2:14-cv-06691-SJO-VBK
v.
BAYVIEW LOAN SERVICING, LLC; M MEMORANDUM*
& T BANK,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted January 3, 2020**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Masis and Verzhin Bagdasaryan and their son Harout Bagdasaryan appeal
pro se the district court’s judgment, following a jury trial, in their action alleging
violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692
et seq., and California law against Bayview Loan Servicing, LLC, and M&T Bank.
*
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).
Plaintiffs’ claims stem from defendants’ servicing of three Small Business
Administration loans for the repair of commercial property. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Spencer v. Peters, 857 F.3d 789, 797
(9th Cir. 2017) (judgment as a matter of law), Puri v. Khalsa, 844 F.3d 1152, 1157
(9th Cir. 2017) (dismissal under Fed. R. Civ. P. 12(b)(6) and legal determinations),
Gingery v. City of Glendale, 831 F.3d 1222, 1226 (9th Cir. 2016) (dismissal for
lack of standing). We may affirm on any ground supported by the record. Cassirer
v. Thyssen-Bornemisza Collection Found., 862 F.3d 951, 974 (9th Cir. 2017). We
affirm.
The district court properly dismissed Harout Bagdasaryan as a party because
plaintiffs failed to allege that defendants caused him a cognizable injury. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (constitutional requirements of
standing).
The district court properly dismissed the claim for Intentional Infliction of
Emotional Distress (“IIED”) because plaintiffs failed to allege that defendants
engaged in outrageous conduct. See Hughes v. Pair, 209 P.3d 963, 976 (Cal. 2009)
(elements of an IIED claim under California law).
Judgment as a matter of law was proper on the fraud claim because plaintiffs
failed to provide evidence of a misrepresentation by Bayview or of plaintiffs’
reliance on any such misrepresentation. See Vess v. Ciba-Geigy Corp., USA, 317
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F.3d 1097, 1105 (9th Cir. 2003) (elements of a fraud claim under California law).
The district court properly entered judgment for defendants on the claim
alleging violations of California’s Unfair Competition Law (“UCL”), Cal. Bus. &
Prof. Code § 17200, because plaintiffs failed to provide evidence of any “unlawful,
unfair or fraudulent business act or practice.” Id.; see Puentes v. Wells Fargo
Home Mortg., Inc., 160 Cal. App. 4th 638, 644 (2008) (requirements for liability
under the UCL).
Plaintiffs have not shown plain error in Jury Instruction 11, regarding the
definition of consumer debt under the FDCPA. See C.B. v. City of Sonora, 769
F.3d 1005, 1016 (9th Cir. 2014) (standard of review); Slenk v. Transworld Sys.,
Inc., 236 F.3d 1072, 1075 (9th Cir. 2001) (explaining the definition of consumer
debt under the FDCPA).
Plaintiffs have waived their remaining arguments by failing to raise them
before the district court. See Janes v. Wal-Mart Stores Inc., 279 F.3d 883, 887 (9th
Cir. 2002) (this court will not consider matters raised for the first time on appeal).
AFFIRMED.
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