FILED
NOT FOR PUBLICATION
MAR 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIALUZ A. BANARES, No. 15-15419
Plaintiff-Appellant, D.C. No. 3:13-cv-04896-VC
v.
MEMORANDUM*
WELLS FARGO BANK, NA; HSBC
BANK USA, N.A., as Trustee for Wells
Fargo Asset Securities Corporation
Mortgage Pass-Through Certificates,
Series 2007-8,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Vince G. Chhabria, District Judge, Presiding
Argued and Submitted February 16, 2017
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and GARBIS,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
Appellant Marialuz Banares obtained a home loan secured by a deed of trust
from Appellee Wells Fargo Bank, N.A (“Wells Fargo”). Through a series of
assignments, Wells Fargo sold the loan to a securitized trust, for which Appellee
HSBC Bank USA (“HSBC”) served as trustee. Banares defaulted on the loan and,
before a scheduled foreclosure sale, filed this lawsuit against Wells Fargo and
HSBC. The district court dismissed the case. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. Banares did not state a claim for wrongful foreclosure. See Fed. R. Civ.
P. 12(b)(6). Banares alleges that three assignments of her loan were defective: (1)
the assignment on or before June 28, 2007 from Wells Fargo to the special purpose
vehicle Wells Fargo Asset Securities Corporation Mortgage Pass-Through
Certificates 2007-8 (“WFASC”); (2) the assignment on or before June 28, 2007
from WFASC to HSBC; and (3) the assignment on March 26, 2013, from Wells
Fargo to HSBC. Because the three assignments all involved the same loan, the
third assignment, if valid, would have cured any defect from the first two. If
Banares did not properly allege that the third assignment was defective, then her
wrongful foreclosure claim fails.
Banares is unable to assert a claim for wrongful foreclosure over the third
assignment. When the parties briefed this appeal, the California Courts of Appeal
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were split over the circumstances under which a borrower could assert wrongful
foreclosure to challenge a defective assignment of the borrower’s loan. Compare
Jenkins v. JP Morgan Chase Bank, Nat’l Ass’n, 216 Cal. App. 4th 497, 511–13
(2013); with Glaski v. Bank of Am., N.A., 218 Cal. App. 4th 1079, 1098–99 (2013).
After the parties’ briefing, the California Supreme Court clarified its law, in part.
In Yvanova v. New Century Mortg. Corp., the California Supreme Court held that a
wrongful foreclosure plaintiff may, after a foreclosure sale has taken place,
challenge an assignment to the foreclosing entity if the assignment was void. 62
Cal. 4th 919, 935 (2016). But the court explicitly left open whether an assignment
like the alleged third assignment here—one into a New York securitized trust in
violation of the trust’s governing agreement—would be void or voidable. Id. at
931. The California Supreme Court held that if merely voidable, the assignment
would not give rise to a claim for wrongful foreclosure. Id. at 936.
New York’s highest court has not addressed whether an assignment into a
New York securitized trust in violation of the trust’s terms is voidable or void. But
the Second Circuit has concluded that the weight of New York authority holds that
it is voidable. See Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 88–89
(2d Cir. 2014) (collecting cases); see also United States v. Rivera-Ramos, 578 F.3d
1111, 1113 (9th Cir. 2009) (“In the absence of compelling reasons, we would not
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create a circuit split with the circuit that encompasses New York regarding the
meaning of New York law.”). As Banares has not alleged facts showing that the
third assignment was void rather than voidable, or that the parties to the third
assignment took steps to avoid it, her claim for wrongful foreclosure fails.
Because Banares’s claim fails in any event, we need not reach, and decline to
address, whether California law permits preemptive wrongful foreclosure actions
after Yvanova.
2. Banares did not state a claim under the Real Estate Settlement Procedures
Act, 12 U.S.C. § 2601 et seq. While Wells Fargo’s failure to answer Banares’s
Qualified Written Request (“QWR”) may have violated 12 U.S.C. § 2605(e),
Banares did not sufficiently plead damages arising from that violation. If Wells
Fargo had responded to Banares’s QWR with more information about the
ownership of her loan, Banares would still have been in default and subject to
foreclosure. See Tamburri v. Suntrust Mortg., Inc., 875 F. Supp. 2d 1009, 1014
(N.D. Cal. 2012).
3. Banares’s claims for fraud and violation of California’s Unfair
Competition Law, Cal. Bus. & Prof. Code § 17200 et seq., similarly fail because
she insufficiently alleged damages. Again, her harm did not arise from one party
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owning the loan rather than another. See Jenkins, 216 Cal. App. 4th at 522–23,
overruled on other grounds by Yvanova, 62 Cal. 4th 919.
4. Banares did not state a claim for quiet title because she has not tendered
her outstanding loan balance. See Lueras v. BAC Home Loans Servicing, LP, 221
Cal. App. 4th 49, 86 (2013).
5. Banares did not state a claim for unjust enrichment because the retention
of loan payments by HSBC, the alleged invalid beneficiary, would not have
unjustly enriched HSBC at the expense of Banares, but rather at the expense of the
true beneficiary. See Ghirardo v. Antonioli, 14 Cal. 4th 39, 51 (1996).
6. Banares’s claim for violation of California Civil Code § 2934a fails
because she has not plausibly alleged that HSBC is not the true beneficiary.
Because the assignment from Wells Fargo to HSBC was voidable—not void—and
has not been avoided, it was valid and cured any defects from the first two
assignments.
7. Banares’s claim for slander of title fails because she did not argue it in
her opening brief. See Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626
F.3d 483, 487 (9th Cir. 2010).
8. The district court did not abuse its discretion in denying leave to amend.
See Chaset v. Fleer/Skybox Int’l, LP, 300 F.3d 1083, 1087–88 (9th Cir. 2002).
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After a previous opportunity to amend, Banares “filed a virtually identical
complaint.” The few allegations Banares added did not claim any new damages
unrelated to her outstanding loan balance or the consequences of foreclosure.
Further amendment would be futile.
AFFIRMED.
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