NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RONALD A. FLATE, individual; GRETA No. 16-55500
G. FLATE, individual,
D.C. No.
Plaintiffs-Appellants, 2:15-cv-08873-AB-FFM
v.
MEMORANDUM*
NATIONSTAR MORTGAGE, LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Argued and Submitted June 13, 2017
San Francisco, California
Before: SCHROEDER and N.R. SMITH, Circuit Judges, and BATTAGLIA,**
District Judge.
Ronald and Greta Flate filed this action in California state court challenging
Nationstar Mortgage’s handling of their application for modification of their home
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
loan. After removal to federal court, the court dismissed under Federal Rule of
Civil Procedure 12(b)(6). The Flates appeal the dismissal of two of their state law
claims and the denial of their claims under federal law, chiefly Regulation X, 12
C.F.R. § 1024.41.
Plaintiffs sought damages under California Civil Code section 2923.7 based
on Defendant’s failure to provide a single point of contact. Damages under section
2923.7 are available only “[a]fter a trustee’s deed upon sale has been recorded.”
Cal. Civ. Code § 2924.12(b). Plaintiffs failed to allege that their home was sold or
that a trustee’s deed upon sale has been recorded. Therefore, the district court
properly dismissed this claim, because damages are not an actionable remedy.
Plaintiffs sought damages under California Civil Code section 2923.6(c).
Section 2923.6(c) provides that, if a borrower has submitted “a complete
application for a first lien loan modification,” a mortgage servicer cannot “record a
notice of . . . sale.” An application for a first lien loan modification is not complete
until all of the required documents are supplied to the mortgage servicer. See Cal.
Civ. Code § 2923.6(h). Plaintiffs allege that Defendants violated section 2923.6(c)
by recording a Notice of Trustee’s Sale on January 20, 2015. But Plaintiffs did not
“complete” their loan modification application until January 23, 2015, when the
Plaintiffs submitted the final required documents. Therefore, the district court
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properly dismissed Plaintiffs’ section 2923.6(c) claim for failing to state a claim
upon which relief can be granted.
Plaintiffs sought damages under several provisions of Regulation X, 12
C.F.R. § 1024.41. To state a claim under Regulation X, Plaintiffs must allege
“actual damages to the borrower as a result of the failure” to comply with any of
the provisions in the statute. 12 C.F.R. § 2605(f). Plaintiffs plead nothing more
than conclusory allegations that Defendant’s alleged violations caused actual
damages. Therefore, the district court properly dismissed the federal claims.
AFFIRMED.
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