Jose Ramos v. Jp Morgan Chase Bank, Na

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE RAMOS; EUFROCINIA RAMOS, No. 15-16668
Plaintiffs-Appellants, D.C. No. 3:14-cv-04909-EMC
v.
MEMORANDUM *
JPMORGAN CHASE & CO.; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC.; WELLS FARGO BANK
N.A., as Trustee for the Greenpoint Funding
Trust 2005-AR5, Mortgage Pass-Through
Certificates, Series 2005-AR5; QUALITY
LOAN SERVICE CORP,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted April 21, 2017**
San Francisco, California
Before: TROTT and IKUTA, Circuit Judges, and FABER,*** District Judge.
*
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).
***
The Honorable David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
This diversity action concerns a home foreclosure. Appellants, who are third
parties to the assignment at issue, argue that Structured Asset Mortgage Investments
II, Inc.’s (“SAMI”) assignment of the loan to the AR5 trust was defective because
SAMI did so without proper endorsement of the Note or assignment of the deed of
trust (“DOT”). Appellants further contend that such a defective transfer breached
the governing terms of the Pooling and Servicing Agreement (“PSA”), and was thus
ineffective.
We disagree. First, PSA violations such as failing to assign the DOT or
endorsing the Note render a mortgage assignment voidable, not void. Saterbak v.
JPMorgan Chase Bank, N.A., 245 Cal. App. 4th 808, 815 (2016). Yvanova v. New
Century Mortgage Corp. did not address whether “an assignment to a securitized
trust made after the trust’s closing date is void or merely voidable,” 62 Cal. 4th 919,
941 (2016). But post-Yvanova California authority has consistently held that such
an assignment is merely voidable. See, e.g., Mendoza v. JPMorgan Chase Bank,
N.A., 6 Cal. App. 5th 802, 805 (2016); Yhudai v. Impac Funding Corp., 1 Cal. App.
5th 1252, 1259 (2016); Saterbak, 245 Cal. App. 4th at 815. Nothing suggests that
the California Supreme Court would hold to the contrary. Appellants therefore lack
standing to contest the validity of loan assignments. See Saterbak, 245 Cal. App.
4th at 815.
Second, Mortgage Electronic Registration Systems (“MERS”) was
2
empowered to assign its beneficial interest in the DOT to Wells Fargo, which
could then instruct the trustee to initiate foreclosure proceedings. The plain
language of the DOT confers upon MERS the right to act “as nominee for Lender
and Lender’s successors and assigns”; MERS retains the express authority to act as
historical nominee—no matter which entity becomes a successor on the loan.1 See
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1042 (9th Cir. 2011);
see also Cal. Civ. Code § 2924(a)(1).
Third, because Appellants did not raise any robosigning allegations in their
opposition to the motion to dismiss, they have “effectively abandoned [their]
claim, and cannot raise it on appeal.” Walsh v. Nev. Dep’t of Human Res., 471
F.3d 1033, 1037 (9th Cir. 2006).
Finally, the securitization of Appellants’ loan and/or the DOT assignment
are the bases for Appellants’ six causes of action.2 Since these premises are
unavailing, the district court properly dismissed Appellants’ complaint completely.
Additionally, the district court properly denied Appellants leave to amend their
complaint since “[a]ny amendment to [the] complaint would be futile.” Haskell v.
Harris, 745 F.3d 1269, 1275 (9th Cir. 2014).
1
Relatedly, we reject the arguments that there is no viable successor in
interest to Appellants’ loan and that MERS’s absence on the note somehow
obliterates its authority under the DOT.
2
(1) Wrongful Foreclosure; (2) Quiet Title; (3) Fraud; (4) Violation of Bus.
& Profs. Code, § 17200, et seq.; (5) Unjust Enrichment; and (6) Accounting.
3
AFFIRMED.
4