Karen Logan v. Us Bank National Association

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN LOGAN , No. 10-55671
Plaintiff-Appellant,
D.C. No.
v. 2:09-cv-08950-
MMM-PLA
U.S. BANK NATIONAL ASSOCIATION ,
as Trustee,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
January 10, 2013—Pasadena, California
Filed July 16, 2013
Before: M. Margaret McKeown and Milan D. Smith, Jr.,
Circuit Judges, and Robert Holmes Bell, District Judge.*
Opinion by Judge McKeown
*
The Honorable Robert Holmes Bell, District Judge for the U.S. District
Court for the W estern District of Michigan, sitting by designation.
2 LOGAN V . U.S. BANK
SUMMARY**
Protecting Tenants at Foreclosure Act
Affirming the dismissal of a complaint seeking damages
and injunctive relief against a bank that filed an unlawful
detainer action against the tenant of a former owner of
foreclosed property, the panel held that there is no private
right of action under the Protecting Tenants at Foreclosure
Act of 2009.
The panel held that, despite the bank’s voluntary
dismissal of the unlawful detainer action, the appeal was not
moot because the bank did not show that it was absolutely
clear that the allegedly wrongful eviction could not
reasonably be expected to recur.
Agreeing with the Third Circuit, the panel held that
abstention under Younger v. Harris, 401 U.S. 37 (1971), from
the exercise of jurisdiction over the claim for injunctive relief
was not warranted because the state detainer action did not
implicate important state interests.
Finally, the panel held that the tenant did not have a
cognizable claim under the Protecting Tenants at Foreclosure
Act because the Act does not, either explicitly or by
implication, evince a congressional intent to create a private
right of action.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LOGAN V . U.S. BANK 3
COUNSEL
Jay D. Trickett (argued), Arne D. Wagner, and James A.
Quadra, Calvo & Clark, LLP, San Francisco, California, for
Plaintiff-Appellant.
Thomas H. Dupree, Jr. (argued), Gibson, Dunn & Crutcher
LLP, Washington, D.C.; Theane Evangelis Kapur, Andrew G.
Pappas, Gibson, Dunn & Crutcher LLP, Los Angeles,
California; John M. Sorich, S. Christopher Yoo, and Jenny L.
Merris, Adorno Yoss Alvardo & Smith, Santa Ana,
California, for Defendant-Appellee.
Kent Qian, National Housing Law Project, Oakland,
California; Samantha Tuttle, Sargent Shriver National Center
on Poverty Law, Chicago, Illinois, for Amicus Curiae
National Housing Law Project, Sargent Shriver National
Center on Poverty Law, Public Justice Center, National Law
Center on Homelessness and Poverty, Tenants Together,
Legal Services of Northern California, Housing and
Economic Rights Advocates, Housing Umbrella Group, and
Community Legal Services.
OPINION
McKEOWN, Circuit Judge:
We consider here an issue of first impression—whether
the Protecting Tenants at Foreclosure Act of 2009 (“PTFA”
or “the Act”) provides a private right of action. Pub. L. No.
111-22, § 701–04, 123 Stat. 1632, 1660–62 (2009). Karen
Logan sought injunctive relief and damages against U.S.
Bank National Association (“US Bank”) after it filed an
4 LOGAN V . U.S. BANK
unlawful detainer action against her in state court without
giving 90 days notice to vacate the foreclosed property as
required by the Act. Although we disagree with the district
court’s abstention from exercising jurisdiction over Logan’s
injunctive relief claim under Younger v. Harris, 401 U.S. 37(1971), we nevertheless affirm dismissal of the complaint
because the Act does not create a private right of action
allowing Logan to enforce its requirements.
BACKGROUND
Logan claims that she was the tenant of the former owner
of a property located in Westlake Village, California.1 US
Bank took title to the property at foreclosure in June 2009.
According to Logan, US Bank served her with a three-day
notice of termination and then immediately initiated an
unlawful detainer action in Los Angeles Superior Court.
Logan alleges that these actions contravened the PTFA,
which required US Bank to serve a 90-day notice of
termination prior to eviction.
After the unlawful detainer action was initiated in June
2009, Logan filed a demurrer raising the PTFA issue, but the
demurrer was overruled. Logan twice attempted, albeit
unsuccessfully, to remove the unlawful detainer action to
federal court.
1
W e treat facts alleged in Logan’s complaint as true for purposes of
evaluating the dismissal for lack of subject matter jurisdiction. Whisnant
v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005). Consequently, we
do not address the factual dispute arising from US Bank’s contention that
Logan was married to the former owner at the time of the foreclosure and
thus not a “bona fide tenant” protected by the PTFA.
LOGAN V . U.S. BANK 5
Logan filed her action in federal court in December 2009,
seeking “temporary, preliminary, and permanent injunctive
relief compelling obediance [sic] to the Federal Law,” as well
as damages. The district court dismissed the complaint,
concluding that Younger v. Harris required it to abstain from
exercising jurisdiction because Logan sought to enjoin an
action that was pending in state court at the time she filed her
case in federal court. The district court further reasoned that
it did not have subject matter jurisdiction over Logan’s claim
for damages under the PTFA because the Act does not create
a private right of action.
ANALYSIS
I. MOOTNESS
As a threshold matter, we address whether Logan’s appeal
is moot given US Bank’s voluntary dismissal of the unlawful
detainer action in February 2010, just two months before she
filed this appeal. Article III of the Constitution limits federal
courts to the adjudication of actual, ongoing cases or
controversies between litigants. If a “live” controversy
ceases to exist because of changed circumstances after the
complaint is filed, the claim is moot and no longer justiciable.
Am. Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010,
1016 (9th Cir. 2006). However, when the basis for mootness
is defendant’s voluntary conduct, a federal court is not
“deprive[d] . . . of its power to determine the legality of the
practice,” leaving the defendant “free to return to [its] old
ways.” Friends of the Earth, Inc. v. Laidlaw Envtl. Serv.,
Inc., 528 U.S. 167, 189 (2000) (internal quotation marks and
citations omitted). Rather, the defendant must “bear[] the
formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be
6 LOGAN V . U.S. BANK
expected to recur.” Id. at 190 (citing United States v.
Concentrated Phosphate Export Ass’n., 393 U.S. 199, 203
(1968)).
US Bank has not met this formidable burden. Its
voluntary dismissal of the unlawful detainer action without
prejudice does not make it “absolutely clear” that the alleged
wrongful eviction “could not reasonably be expected to
recur.” Id. The bank has offered no evidence or reassurance
that it either could not or would not reinitiate the unlawful
detainer action against Logan at another time, should she
remain in possession of the property. Additionally, even if
the request for injunctive relief were moot, Logan’s pursuit of
monetary relief ensures that the case “remains definite and
concrete, touching the legal relations of parties having
adverse legal interests.” Havens Realty Corp. v. Coleman,
455 U.S. 363, 371 (1982) (internal quotation marks and
citation omitted). Dismissal of the state unlawful detainer
proceedings did not moot Logan’s claim.
II. YOUNGER ABSTENTION
As a general rule, a federal court has a “virtually
unflagging obligation” to adjudicate controversies properly
before it. Deakins v. Monaghan, 484 U.S. 193, 203 (1988)
(internal quotation marks and citation omitted). In carrying
out this duty, federal courts “may well affect, or for practical
purposes pre-empt” a pending state court action, but “there is
no doctrine that . . . the pendency of state judicial proceedings
excludes the federal courts.” New Orleans Pub. Serv. Inc.
(“NOPSI”) v. Council of New Orleans, 491 U.S. 350, 373
(1989). To the contrary, a pending action in state court is
generally “no bar to proceedings concerning the same matter
in the Federal court having jurisdiction.” Colo. River Water
LOGAN V . U.S. BANK 7
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)
(quoting McClellan v. Carland, 217 U.S. 268, 282 (1910)).
Against this backdrop, the Supreme Court has carved out
an “‘extraordinary and narrow exception.’” Colo. River
Water Conservation, 424 U.S. at 813 (quoting Cnty. of
Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188–89
(1959)). In Younger v. Harris, the Supreme Court held that
a federal court may not interfere with a pending state criminal
prosecution absent extraordinary circumstances. 401 U.S.
43–54. This principle has also been extended to limited
classes of civil proceedings. See NOPSI, 491 U.S. at 367–68.
For example, in Middlesex County Ethics Committee v.
Garden State Bar Association, 457 U.S. 423, 432 (1982), the
Supreme Court applied Younger abstention to state attorney
disciplinary proceedings, but was careful to limit its
application in the non-criminal context to those cases where
(1) there is an ongoing state proceeding, (2) the state
proceeding implicates important state interests, and (3) the
state proceeding provides an adequate opportunity to raise
federal questions. Interpreting the Supreme Court’s directive,
the Ninth Circuit has emphasized another criterion: (4) that
the federal action would enjoin the state proceeding or have
the practical effect of doing so. San Jose Silicon Valley
Chamber of Commerce Political Action Comm. v. City of San
Jose, 546 F.3d 1087, 1092 (9th Cir. 2008). All four elements
must be satisfied to warrant abstention. AmerisourceBergen
Corp. v. Roden, 495 F.3d 1143, 1148 (9th Cir. 2007).
US Bank’s unlawful detainer action meets three of the
four requirements. To begin, there was an ongoing
proceeding in state court when Logan filed the federal action
in December 2009. Although US Bank later voluntarily
dismissed the state action without prejudice in February 2010,
8 LOGAN V . U.S. BANK
the relevant date for evaluating abstention is the date the
federal action is filed. Gilbertson v. Albright, 381 F.3d 965,
969 n.4 (9th Cir. 2004) (en banc); Kitchens v. Bowen,
825 F.2d 1337, 1341 (9th Cir. 1987) (“[T]he critical question
is not whether the state proceedings are still ongoing, but
whether the state proceedings were underway before
initiation of the federal proceedings.”) (internal quotation
marks and citation omitted). Second, Logan had the
opportunity to litigate her federal question in state court.
Although she was unsuccessful, the pertinent inquiry in the
abstention context is whether plaintiffs’ federal claims “could
have been raised in the pending state proceedings.” Moore v.
Sims, 442 U.S. 415, 425 (1979). Logan also meets the third
prong: The purpose of her federal action is either to enjoin
the state proceeding directly or to have the practical effect of
doing so by limiting US Bank’s ability to pursue its state
court action.
Despite satisfying these three requirements, abstention is
not warranted because the state unlawful detainer action does
not implicate “important state interests.” Notwithstanding its
apparent breadth, that tag line is not an invitation to abstain
simply because a suit implicates a state law, even one
involving a traditional state concern. While recognizing
important state interests in a number of civil proceedings,
“neither we nor the Supreme Court has held Younger to apply
generally to ordinary civil litigation.” Potrero Hills Landfill,
Inc. v. Cnty. of Solano, 657 F.3d 876, 882 (9th Cir. 2011). In
Middlesex, the Supreme Court offered three types of civil
proceedings in which a state might have a vital interest: non-
criminal proceedings that “bear a close relationship to
proceedings criminal in nature,” “[p]roceedings necessary for
the vindication of important state policies,” and
“[p]roceedings necessary . . . for the functioning of the state
LOGAN V . U.S. BANK 9
judicial system.” 457 U.S. at 432. The first two categories
implicate the state’s executive interest and encompass cases
in which the state or an agent of the state is a party “in an
enforcement posture,” Potrero Hills Landfill, 657 F.3d at
883.2 The third category encompasses cases—including
those between private parties—where the operation of the
state judicial system is itself at issue.3
An unlawful detainer action does not fall into any of these
categories. Obviously it does not bear a close relationship to
proceedings that are criminal in nature, nor does it implicate
the functioning of the state judicial system. The only
question for discussion is whether the suit vindicates
important state interests or policies. But the eviction action
does not fit in that category either because it is garden variety
civil litigation between private parties, not a state
enforcement action.
2
See, e.g., Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc.,
477 U.S. 619 (1986) (pending administrative proceeding in which the state
civil rights commission was enforcing its employment anti-discrimination
laws); Middlesex, 457 U.S. 423 (pending disciplinary proceeding in which
the local county ethics committee was maintaining the professional
conduct of the attorneys it licenses); Moore v. Sims, 442 U.S. 415 (1979)
(pending state proceeding in which the Texas Department of Human
Resources was enforcing its child abuse laws); Trainor v. Hernandez,
431 U.S. 434 (1977) (pending suit in which the Illinois Department of
Public Aid sought the return of welfare payments allegedly wrongfully
received); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) (pending state
nuisance proceeding instituted by sheriff and prosecuting attorney).
3
See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13–14 (1987)
(holding that a federal court may not enjoin execution of a state court
judgment pending appeal of that judgment to a state appellate court);
Juidice v. Vail, 430 U.S. 327, 335 (1977) (holding that a federal court may
not enjoin the state’s contempt process because “[t]he contempt power lies
at the core of the administration of a State’s judicial system”).
10 LOGAN V . U.S. BANK
It is not enough that the state court action concerns real
property transfers, leasehold estates, and tenant rights, all of
which are historically the domain of state regulation. “[I]t is
not the bare subject matter of the underlying state law that . . .
determine[s] whether the state proceeding implicates an
‘important state interest’ for Younger purposes.” Potrero
Hills Landfill, 657 F.3d at 884. Instead, “the content of state
laws becomes ‘important’ for Younger purposes only when
coupled with the state executive’s interest in enforcing such
laws” or the state judiciary’s interest in the operation of the
judicial system. Id. at 884–86; see also Cate v. Oldham,
707 F.2d 1176, 1183 (11th Cir. 1983) (“Application of the
Younger doctrine to ongoing state civil proceedings has been
limited to those civil actions in aid of criminal jurisdiction or
involving enforcement-type proceedings in which vital
interests of the state qua state are involved.”). By contrast,
the unlawful detainer action here is simply a private dispute
between two private parties over possession of a property.
The state has not stepped in as a party to enforce its tenancy
laws, and no core aspect of the administration of the state’s
judicial system is at issue.4 This is not to say that the state
4
This case is distinct from Goldie’s Bookstore, Inc. v. Superior Court
of State of California, 739 F.2d 466, 467–68 (9th Cir. 1984), where a
sublessee brought an action against a California Superior Court, a county
sheriff, a county marshal, and others, seeking a preliminary injunction
against enforcement of a state unlawful detainer judgment. There we held
that California did not have an important interest in enforcing a state
detainer judgment for purposes of Younger abstention. Id. at 470.
Goldie’s Bookstore was later called into question after the Supreme Court
decided in Pennzoil that a state has an important interest in executing state
court judgments. See Lebbos v. Judges of the Superior Court, Santa Clara
Cnty., 883 F.2d 810, 815 n.6 (9th Cir. 1989) (“Our conclusion in [Goldie’s
Bookstore] that the proceedings did not implicate important state interests
appears to have been substantially undermined by the Supreme Court’s
holding in Pennzoil.”) (internal citation omitted). W e do not take a
LOGAN V . U.S. BANK 11
does not have a significant interest in protecting tenants, only
that such interest does not warrant abstention.
Although the district court cited to several district court
decisions holding that “unlawful detainer actions represent a
sufficient state interest to warrant Younger abstention,” we
are not persuaded. Logan v. U.S. Bank Nat’l Ass’n, No. CV
09-08950, 2010 WL 1444878, at *3 (C.D. Cal. April 12,
2010); see, e.g., McGlothin v. Santos, No. 1:08cv1290,
2008 WL 5135996, at *6 (E.D. Cal. Dec. 8, 2008); Hicks v.
Superior Court of Cal., Cnty. of Kern, No. 08-cv-0207,
2008 WL 638544, at *5 (E.D. Cal. March 5, 2008). Those
decisions, like the district court’s decision here, fall prey to
the logic that the state has a significant concern simply
because property law, including eviction, has long been a
state concern. The difficulty with this assumption is that it
would require federal courts to abstain from state litigation in
virtually every area of state law—from consumer protection
to real estate—even where the dispute is purely private. We
agree with the Third Circuit that the regulation of eviction
proceedings “does not implicate an important state interest”
under Younger. Ayers v. Phila. Hous. Auth., 908 F.2d 1184,
1195 n.21 (3d Cir. 1990) (holding that an eviction action
brought by Philadelphia’s city housing authority did not
implicate an important state interest).
position on whether US Bank’s unlawful detainer action would implicate
an important state interest if US Bank had already obtained a favorable
judgment and Logan sought to enjoin its enforcement, as was the factual
scenario in Goldie’s Bookstore. Suffice it to say that there is no state court
judgment at issue here, and no concern about interfering with the
execution of state court judgments.
12 LOGAN V . U.S. BANK
III. No PRIVATE RIGHT OF ACTION UNDER THE
PROTECTING TENANTS AT FORECLOSURE ACT
Although Logan’s claims are neither moot nor precluded
by Younger, they fail because she has no cognizable claim
under the PTFA. The Supreme Court has repeatedly held that
private rights of action, like substantive federal law itself,
must be created by Congress. See, e.g., Alexander v.
Sandoval, 532 U.S. 275, 286 (2001). Our challenge is to
determine whether the PTFA, either explicitly or by
implication, evinces a congressional intent to create a private
right of action. Touche Ross & Co. v. Redington, 442 U.S.
560, 568 (1979). Without clear evidence of such intent,
courts may not create a cause of action “no matter how
desirable . . . as a policy matter, or how compatible with the
statute.” Sandoval, 532 U.S. at 286–87. This issue is a
question of first impression for this court, but a number of
district courts within this circuit have held that there is no
such right. See, e.g., Wells Fargo Bank v. Lapeen, No. C11-
01932, 2011 WL 2194117, at *1 (N.D. Cal. June 6, 2011)
(concluding that “the PTFA only provides tenants with
federal defenses to eviction but does not create a federal
ejectment claim or any private right of action”); Nativi v.
Deutsche Bank Nat’l Trust Co., No. 09-06096, 2010 WL
2179885, at *2–5 (N.D. Cal. May 26, 2010) (holding that the
PTFA does not provide for an implied private right of action).
We conclude that the statute neither explicitly nor impliedly
creates a private right of action allowing Logan to enforce the
PTFA.
Section 702(a) of the PTFA provides:
In the case of any foreclosure on a
federally-related mortgage loan or on any
LOGAN V . U.S. BANK 13
dwelling or residential real property after the
date of enactment of this title, any immediate
successor in interest in such property pursuant
to the foreclosure shall assume such interest
subject to—
(1) the provision, by such successor in interest
of a notice to vacate to any bona fide tenant at
least 90 days before the effective date of such
notice; and
(2) the rights of any bona fide tenant, as of the
date of such notice of foreclosure—
(A) under any bona fide lease entered into
before the notice of foreclosure to occupy
the premises until the end of the
remaining term of the lease, except that a
successor in interest may terminate a lease
effective on the date of sale of the unit to
a purchaser who will occupy the unit as a
primary residence, subject to the receipt
by the tenant of the 90 day notice under
paragraph (1); or
(B) without a lease or with a lease
terminable at will under state law, subject
to the receipt by the tenant of the 90 day
notice under subsection (1).
PTFA § 702(a).
The parties acknowledge that the statute does not
explicitly create a private cause of action because nothing in
14 LOGAN V . U.S. BANK
the text of § 702(a) references the availability of any action
to enforce the statute’s provisions, describes a forum in which
an enforcement suit may be brought, or identifies a plaintiff
for whom such a forum is available. Accordingly, any private
right of action within § 702(a) must be implied from the
statute’s language, structure, context, and legislative history.
See Opera Plaza Residential Parcel Homeowners Ass’n v.
Hoang, 376 F.3d 831, 836 (9th Cir. 2004).
In Cort v. Ash, the Supreme Court identified four factors
that are relevant for determining whether a private remedy is
implicit in a statute not expressly providing one: (1) whether
the plaintiff is “one of the class for whose especial benefit the
statute was enacted”; (2) whether there is “any indication of
legislative intent, explicit or implicit, either to create such a
remedy or to deny one”; (3) whether an implied private cause
of action for the plaintiff is “consistent with the underlying
purposes of the legislative scheme”; and (4) whether the
cause of action is “one traditionally relegated to state law . . .
so that it would be inappropriate to infer a cause of action
based solely on federal law.” 422 U.S. 66, 78 (1975)
(internal quotation marks and citations omitted). The Cort
test replaced the understanding of private rights of action that
had previously held sway—that “‘it [was] the duty of the
courts to be alert to provide such remedies as are necessary to
make effective the congressional purpose’ expressed by a
statute.” Sandoval, 532 U.S. at 287 (quoting J.I. Case Co. v.
Borak, 377 U.S. 426, 433 (1964)). Cort represented a
“retreat[] from [the Supreme Court’s] previous willingness to
imply a cause of action where Congress ha[d] not provided
one.” Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 67 n.3
(2001).
LOGAN V . U.S. BANK 15
In later cases, the Supreme Court essentially collapsed the
Cort test into a single focus: “[t]he central inquiry remains
whether Congress intended to create, either expressly or by
implication, a private cause of action.” Touche Ross,
442 U.S. at 575; see also Cal. v. Sierra Club, 451 U.S. 287,
293 (1981) (“[T]he ultimate issue is whether Congress
intended to create a private right of action.”); Thompson v.
Thompson, 484 U.S. 174, 189 (1988) (Scalia, J., concurring)
(“[W]e effectively overruled the Cort v. Ash analysis in
[Touche Ross] . . . converting one of its four factors
(congressional intent) into the determinative factor. . . .”)
(emphasis in original). Nonetheless, our court has found the
four factor test helpful, and has continued to employ it to
“guide [the] central project of discerning Congress’s intent.”
Orkin v. Taylor, 487 F.3d 734, 739 (9th Cir. 2007).
Because the Supreme Court has elevated intent into a
supreme factor, we start there and do not feel constrained by
the Cort framework.5 As with any case involving
congressional intent, we presume that Congress expressed its
intent through the statutory language it chose. Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 253–54 (1992). We begin
our search for congressional intent with the language and
structure of the statute, and then look to legislative history
only if the language is unclear, Alarcon v. Keller Indus., Inc.,
27 F.3d 386, 389 (9th Cir. 1994), or if there is a clearly
expressed contrary intention in the legislative history that
5
W e also point out that the validity of the fourth Cort factor— whether
the cause of action is one traditionally relegated to state law— has been
called into question. First Pac. Bancorp, Inc. v. Helfer, 224 F.3d 1117,
1127 (9th Cir. 2000). Regardless, considering it would not alter our
conclusion. Traditionally, leases and eviction proceedings are uniquely
state law matters such that “it would be inappropriate to infer a cause of
action based solely on federal law.” Cort, 422 U.S. at 78.
16 LOGAN V . U.S. BANK
may overcome the strong presumption that the statutory
language represents congressional intent, Flores-Arellano v.
I.N.S., 5 F.3d 360, 362 (9th Cir. 1993).
Nothing in the language and structure of § 702(a) reflects
a clear and unambiguous intent to create a private right of
action. See Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002)
(“[C]lear and unambiguous terms” are “required for Congress
to create new rights enforceable under an implied private
right of action.”). The difficulty for Logan is that the PTFA
focuses on the “immediate successor in interest” in the
property—in other words, the regulated party. Section 702(a)
is framed in terms of the obligations imposed on the regulated
party (“any immediate successor in interest . . . shall assume
such interest subject to . . .”), while the “bona fide tenant” is
referenced only as an object of that obligation. Statutes
containing general proscriptions of activities or focusing on
the regulated party rather than the class of beneficiaries
whose welfare Congress intended to further “do[] not indicate
an intent to provide for private rights of action.” Sierra Club,
451 U.S. at 294; see also Sandoval, 532 U.S. at 289.
Nor does the PTFA place Logan into a class for whose
“especial” benefit the statute was enacted. An “especial”
beneficiary is not “simply [one] who would benefit from the
Act”—otherwise, the victim of any crime would be an
especial beneficiary of the criminal statute’s proscription.
Sierra Club, 451 U.S. at 293–94 (emphasis in original). It is
true that tenants would benefit from the Act’s requirements
to provide 90 days’ notice to vacate and to allow tenants to
continue occupying the premises until the end of the
remaining lease term, but the conferral of benefits is not
enough. Id. at 294 (“The question is not simply who would
benefit from the Act, but whether Congress intended to confer
LOGAN V . U.S. BANK 17
federal rights upon those beneficiaries.”) (citation omitted).
Section 702’s focus on the parties regulated rather than the
individuals ultimately benefited by the statute weighs against
implication of a private right of action.
Logan argues that the title of the statute—“Protecting
Tenants at Foreclosure Act of 2009”—evinces sufficient
congressional intent to create a federal right in favor of
tenants of foreclosed properties. But, here, the title does no
work in divining intent. Though a statute’s title “can be used
to resolve[] ambiguity,” it “cannot control the plain meaning
of a statute.” Oregon Pub. Util. Comm’n v. I.C.C., 979 F.2d
778, 780 (9th Cir. 1992).
Looking to the overall statutory scheme, we discover that
PTFA is part of a larger framework in which Congress did
provide a private cause of action for a different specified
claim. The PTFA was enacted as part of the Helping
Families Save Their Homes Act of 2009 (“the Homes Act”).
Pub. L. No. 111-22, § 1(a), 123 Stat. 1632, 1632 (2009)
(Division A, under which the PTFA appears as Title VII,
§§ 701–04, “may be cited as the ‘Helping Families Save
Their Homes Act of 2009.’”). Section 404(a) of the Homes
Act added a notice requirement to the Truth in Lending Act,
15 U.S.C. § 1641, under which a new creditor must notify the
borrower in writing of certain information no later than 30
days after a mortgage loan is transferred or assigned.
§ 404(a), 123 Stat. at 1658. Section 404(b) then explicitly
amended the private right of action provision of the Truth in
Lending Act, 15 U.S.C. § 1640(a), allowing “any person” to
sue a creditor who fails to comply with the newly enacted
notice requirement or other requirements under the Act for
damages. § 404(b), 123 Stat. at 1658.
18 LOGAN V . U.S. BANK
No such language accompanies § 702. Where a statutory
scheme contains a particular express remedy or remedies, “a
court must be chary of reading others into it.” Transamerica
Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979).
Because Congress included an express provision for private
enforcement under one section of the Homes Act, it is “highly
improbable that Congress absentmindedly forgot to mention
an intended private action” in the PTFA section. Id. at 20(internal quotation marks and citation omitted); see also In re
Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1232 (9th
Cir. 2008) (“Where analogous provisions expressly provide
for a private right of action, we must infer that Congress did
not intend to create a private right of action in the statutory
section at issue.”) (internal quotation marks and citation
omitted).
The legislative history of § 702(a) reinforces our decision
not to imply a private right of action. Like the statutory
language itself, the legislative history emphasizes compliance
by landlords and foreclosing lenders. Then-Senator John
Kerry, the bill’s primary drafter, proclaimed: “A landlord
should not be allowed to come in, change the locks, and force
out tenants who were there completely legitimately, with an
expectation that they were coming home to their same old
home.” 155 Cong. Rec. S5111 (daily ed. May 5, 2009).
After passage of the legislation, Senator Kerry praised the
Federal Reserve and the Department of Housing and Urban
Development for quickly issuing notifications outlining “how
regulated institutions are expected to comply with the terms
of the act.” 155 Cong. Rec. S8978 (daily ed. Aug. 6, 2009).
Although the legislative history underscores that the
statute’s ultimate purpose is to benefit tenants, see, e.g.,
155 Cong. Rec. S5097 (daily ed. May 5, 2009) (“I am
LOGAN V . U.S. BANK 19
offering this amendment to address the needs of renters in
properties that have been foreclosed.”) (statement of Sen.
John Kerry), it is silent as to any right or remedy for tenants.
Where the statutory language and structure do not indicate a
congressional intent to create a private right of action, “silent
legislative history precludes further inquiry.” Helfer,
224 F.3d at 1125 (citing Texas Indus., Inc. v. Radcliff
Materials, Inc., 451 U.S. 630, 639 (1981)). When the PTFA
was amended in July 2010 to clarify the statute and extend its
application, once again Congress was silent—both in the text
and in legislative history—with regard to any private right of
action. Dodd-Frank Wall Street Reform and Consumer
Protection Act, Pub. L. 111-203, § 1484, 124 Stat. 1376, 2204
(2010). By the time of the amendment, several courts had
determined that no private remedy existed under the PTFA.
See, e.g., Claremont 1st Street Investors v. Espinoza, No.
CV10-3532, 2010 WL 2486804 (C.D. Cal. June 15, 2010)
(concluding that there is no private right of action); Nativi,
2010 WL 2179885 (same); Bank of America, N.A. v. Owens,
903 N.Y.S.2d 667 (Rochester City Ct. 2010) (same). We
must presume that Congress acted with awareness of these
judicial decisions. See United States v. Alvarez-Hernandez,
478 F.3d 1060, 1065 (9th Cir. 2007).
Finally, we note that the PTFA’s nationwide federal
policy and requirements are not rendered unenforceable by
the absence of a federal private right of action. See Helfer,
224 F.3d at 1126 (explaining that where Congress or an
administrative agency provided no explicit enforcement
mechanism, “it is appropriate to infer that Congress did not
intend to enact unenforceable requirements”). The PTFA is
framed in terms of “protections” for tenants, suggesting that
it was intended to provide a defense in state eviction
proceedings rather than a basis for offensive suits in federal
20 LOGAN V . U.S. BANK
court. Notice requirements are typically elements of unlawful
detainer actions that can be employed to challenge a state
eviction proceeding by showing that the notice requirement
was not met. See, e.g., Cal. Code Civ. Proc. § 1161
(requiring three days’ notice to be served on the tenant in
writing containing specified information); Nev. Rev. Stat.
§ 40.2516 (requiring five days’ notice to be served on the
tenant in writing). Amici argue that defense of a state
eviction action would be inadequate to enforce the PTFA in
states that allow the purchaser at a foreclosure sale to remove
a tenant without judicial process. While we are troubled by
such a possibility, we have not been presented with concrete
facts in this case that allow us to evaluate that scenario. Nor
can this policy consideration override congressional intent not
to incorporate a private right of action. The intent of
Congress remains the “ultimate issue.” Thompson, 484 U.S.
at 179. Because we cannot infer a congressional intent to
create a private right of action from the language of the
statute, the statutory structure, or any other source, “the
essential predicate for implication of a private remedy simply
does not exist.” Id. (internal quotation marks and citation
omitted). The district court’s dismissal of Logan’s complaint
is AFFIRMED.