Coward v. J.P. Morgan Chase Bank, N.A.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 14 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

DANA Y. COWARD, No. 14-16378

Plaintiff-Appellant, D.C. No.
2:11-cv-03378-GEB-AC
v. Eastern District of California,
Sacramento
J.P. MORGAN CHASE BANK, N.A.,
ORDER
Defendant-Appellee.

Before: GRABER and McKEOWN, Circuit Judges, and PETERSON,* District
Judge.

The memorandum disposition filed August 15, 2016, is hereby amended.

An amended disposition is filed concurrently with this order.

With these amendments, the panel has voted to deny the petition for panel

rehearing. Judges Graber and McKeown have voted to deny the petition for

rehearing en banc. Judge Peterson declines to make a recommendation.

The full court has been advised of the petition for rehearing and rehearing en

banc, and no judge has requested a vote on whether to rehear the matter en banc.

*
The Honorable Rosanna Malouf Peterson, United States District
Judge for the Eastern District of Washington, sitting by designation.
Fed. R. App. P. 35.

The petition for panel rehearing and petition for rehearing en banc are

DENIED. No further petitions for en banc or panel rehearing shall be permitted.

2
FILED
NOT FOR PUBLICATION
OCT 14 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANA Y. COWARD, No. 14-16378

Plaintiff - Appellant, D.C. No. 2:11-cv-03378-GEB-AC

v.
AMENDED
J.P. MORGAN CHASE BANK, N.A., MEMORANDUM*

Defendant - Appellee.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding

Submitted August 11, 2016**
San Francisco, California

Before: GRABER, and McKEOWN, Circuit Judges, and PETERSON,*** District
Judge.

*
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).
***
The Honorable Rosanna Malouf Peterson, United States District Judge
for the Eastern District of Washington, sitting by designation.
Dana Coward appeals the dismissal of her fourth amended complaint against

JP Morgan Chase Bank, N.A. (“JP Morgan”) alleging fraud in the origination of

her mortgage loan. The district court dismissed the complaint without leave to

amend for failure to comply with the administrative requirements set out in the

Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA),

12 U.S.C. § 1821(d)(13)(D), and for failure to adequately plead fraud under

Federal Rule of Civil Procedure 9(b). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

On appeal, Coward attempts to revive various claims that the district court

dismissed in her first and second amended complaints and that are not included in

the fourth amended complaint. She argues that these claims were dismissed with

prejudice and are therefore preserved for appeal. Lacey v. Maricopa Cty., 693

F.3d 896, 928 (9th Cir. 2012) (en banc) ("For claims dismissed with prejudice and

without leave to amend, we will not require that they be repled in a subsequent

amended complaint to preserve them for appeal."). However, because Coward

abandoned these claims in her opposition to JP Morgan's motion to dismiss her

second amended complaint, we affirm their dismissal.

In the cause of action contained in the fourth amended complaint, Coward

claims that, at the time her mortgage loan was issued in 2005, an employee of

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Long Beach Mortgage Company—the original issuer of the mortgage

loan—fraudulently certified Coward’s husband’s signature, although he was

working as a contractor in Iraq at the time and was unavailable to sign the loan

documents. Coward further alleges that the Long Beach Mortgage employee who

certified her loan may have been subsequently hired by J.P. Morgan and was,

therefore, acting as its “agent, employee, or independent contractor,” even though

J.P. Morgan did not acquire Coward’s loan until several years after it was issued.

The complaint does not allege with any particularity how the fraud occurred, nor

does it explain J.P. Morgan’s involvement in any fraudulent acts that might have

occurred at the issuance of the mortgage. See Bly-Magee v. California, 236 F.3d

1014, 1019 (9th Cir. 2001) (“[A]llegations of fraud must be specific enough to give

defendants notice of the particular misconduct which is alleged to constitute the

fraud charged so that they can defend against the charge and not just deny that they

have done anything wrong.” (internal quotation marks omitted)).

Because we conclude that Coward has failed to state a claim under Rule

12(b)(6), we do not address whether her claim is also barred by failure to exhaust

administrative remedies under FIRREA. In the absence of evidence that Coward

could cure the deficiencies in her pleadings through another amended complaint,

the district court did not abuse its discretion in denying Coward leave to amend.

3
See Bozzio v. EMI Grp. Ltd., 811 F.3d 1144, 1148 (9th Cir. 2016) (“We review the

district court’s denial of leave to amend for abuse of discretion.” (internal

quotation marks omitted)).

AFFIRMED.