FILED
NOT FOR PUBLICATION
FEB 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARD GOMES, JR., No. 13-16236
Plaintiff - Appellant, D.C. No. 1:12-cv-00311-SOM-
BMK
v.
BANK OF AMERICA, N.A. and BAC MEMORANDUM*
HOME LOANS SERVICING, LP,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Submitted February 10, 2016**
Honolulu, Hawaii
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
Plaintiff Leonard Gomes, Jr., appeals the district court’s order granting
summary judgment in favor of Defendants on Gomes’s negligence claim and on
Gomes’s unfair and deceptive acts and practices (UDAP) claim brought under
*
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).
Hawaii Revised Statutes § 480-2. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. Assuming that Defendants had a duty of care and breached it, Gomes
failed to establish a triable issue as to whether the breach caused him any injury.
First, Defendants were not responsible for Gomes’s default. Gomes defaulted
because he could no longer afford payments, not because he relied on Defendants’
statements or was expecting a loan modification. Defendants’ statements did not
cause Gomes to forgo other options. He tried to sell his house but did not receive
any offers on it.
Second, Gomes did not show that Defendants’ actions negatively affected
his credit after he defaulted. Gomes rejected the loan modification offer he
ultimately received because he could not afford its payments. He defaulted on
other mortgages and did not show that the damage to his credit was proximately
caused by Defendants’ actions here. Further, Gomes provided no evidence that,
absent Defendants’ actions, he would have successfully pursued the alternative
forms of relief he identifies on appeal, such as reorganization through bankruptcy.
Third, Gomes admitted that he paid no costs and fees associated with a delay
in processing his loan modification applications, and he presented no evidence that
he accrued such costs and fees.
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2. Because Gomes did not create a triable issue that Defendants’ actions
injured him, he also failed to create a triable issue on his UDAP claim, which
required that he demonstrate “an injury resulting in damages.” Compton v.
Countrywide Fin. Corp., 761 F.3d 1046, 1056 (9th Cir. 2014). We decline to
analyze Gomes’s UDAP claim under the “relaxed burden” reserved for antitrust
claims because Gomes’s claim rests only on unfair or deceptive acts or practices.
See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)
(noting that compensable antitrust injury should “reflect the anticompetitive effect
either of [defendants’] violation or of anticompetitive acts made possible by the
violation”).
AFFIRMED.
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