Theresa Schoenbart v. U.S. Bank

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

THERESA M. SCHOENBART, No. 16-16871

Plaintiff-Appellant, D.C. No. 3:16-cv-00070-WHA

v.
MEMORANDUM*
U.S. BANK, as Trustee for LSF9 Master
Participation Trust; QUALITY LOAN
SERVICE CORPORATION; CALIBER
HOME LOANS, INC.; DOES, 1-20,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding

Submitted December 8, 2017**
San Francisco, California

Before: THOMAS, Chief Judge, and LUCERO*** and OWENS, Circuit Judges.

Plaintiff Theresa M. Schoenbart appeals from the district court’s dismissal of

*
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 Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
her first amended complaint under Fed. R. Civ. P. 12(b)(6) and the court’s

subsequent denial of her motion to amend that complaint. As the parties are

familiar with the facts, we do not recount them here. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

1. Schoenbart lacks standing under California law to bring this preemptive

action to block a nonjudicial foreclosure. Saterbak v. JPMorgan Chase Bank,

N.A., 199 Cal. Rptr. 3d 790, 795-98 (Ct. App. 2016). The language of the deed of

trust does not confer such standing. Id. at 796-98. Nor do California Civil Code

sections 2924(a)(6) and 2924f, the California Homeowner Bill of Rights provisions

under which Schoenbart sues. Lucioni v. Bank of Am., N.A., 207 Cal. Rptr. 3d 418,

421-24 (Ct. App. 2016); see also Cal. Civ. Code §§ 2924.12(a)(1), .19(a)(1).

2. The district court did not abuse its discretion in denying Schoenbart’s

motion to amend her first amended complaint. Schoenbart’s proposed second

amended complaint contained only one new factual allegation: that “[Washington

Mutual] through December 31, 2007, securitized and sold [$]82,000,000,000.00

(82 billion dollars) of loans, which included Plaintiff’s loan.” But this new

allegation does not cure her lack of standing under California law, and given

California’s blanket ban on preforeclosure suits like Schoenbart’s, see Saterbak,

199 Cal. Rptr. 3d at 795, further amendment in this regard would be futile. Denial

of Schoenbart’s motion to amend was therefore permissible. Cervantes v.

2
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011).

3. We need not resolve Schoenbart’s argument regarding tender. The

district court denied Schoenbart’s motion not because of Schoenbart’s failure to

tender but because her proposed second amended complaint failed to state a

plausible claim for relief. Because we affirm the dismissal of Schoenbart’s

complaint on other grounds, this issue is moot. See, e.g., Shafer v. Cty. of Santa

Barbara, 868 F.3d 1110, 1114 n.2 (9th Cir. 2017).

AFFIRMED.