FILED
NOT FOR PUBLICATION
FEB 28 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANI S. NARVASA, No. 17-15163
Plaintiff-Appellant, D.C. No.
2:15-cv-02369-KJM-EFB
v.
U.S. BANCORP, DBA U.S. Bank, N.A., MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted February 15, 2018
San Francisco, California
Before: HAWKINS and TALLMAN, Circuit Judges, and MURPHY,** District
Judge.
Fernani Narvasa (“Narvasa”) appeals the Federal Rule of Civil Procedure
(“Rule”) 12(b)(6) dismissal of her action against U.S. Bancorp (“Bancorp”) which
relied on preemption through the National Bank Act (“NBA”), 12 U.S.C. § 24, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen J. Murphy III, United States District Judge for
the Eastern District of Michigan, sitting by designation.
its corresponding regulations, 12 C.F.R. § 34.4(a)(9) (2018). We decline to address
the preemption question and affirm on the alternative ground that the complaint failed
to adequately allege a plausible theory of liability.
Narvasa’s claims stemmed from an alleged violation of California Civil Code
§ 2923.6(f)(3) (2017) (repealed 2018), which required the lender to provide certain
information if “the denial is the result of a net present value calculation.” Narvasa’s
complaint alleges the bank denied her loan modification application based on net
present value (“NPV”), but the actual denial notice, attached as an exhibit to the
complaint, does not explicitly state or impliedly suggest that the modification was
denied on this basis. Although we usually must accept allegations stated in the
complaint as true for purposes of a Rule 12(b)(6) dismissal, “we are not required to
accept as true conclusory allegations which are contradicted by documents referred
to in the complaint.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th
Cir. 1998).
Here, the denial letter sent to Narvasa contained a “Loss Mitigation Review
Determination Summary,” which identified fifteen different types of loan programs
2
and provided an explanation why the bank denied her loan for each.1 None mention
NPV.
Narvasa concedes as much in her reply brief, but argues that “her counsel’s
discussion with USB’s representative confirmed that the denial was indeed based on
the NPV calculations.” This, however, is not what the complaint alleges. Narvasa
alleges her counsel contacted Bancorp to discuss the denial, but she does not allege
that during that conversation the bank admitted the denial was based on NPV. Rather,
she alleges only that the Bancorp representative stated the bank did not need to
provide its NPV calculations and that it “never provide[s] such information.” This is
not a concession that NPV was actually the basis for the denial under any of the
fifteen programs.
Because Narvasa did not adequately allege a violation of California Civil Code
§ 2923.6(f)(3), we affirm the district court’s dismissal of Narvasa’s complaint.
AFFIRMED.
1
Reasons proffered included “your loan is not a second lien mortgage,” “the
account is due more than eleven contractual payments at this time,” “an account was
previously modified under this program on your behalf making you ineligible for this
program again,” and “the application indicated that you wish to retain home
ownership, therefore the account was not reviewed for this program.” The remaining
appear to have been denied based on the borrower’s income: “We are unable to create
an affordable monthly payment amount without altering your account beyond the
program limitations,” and “your income is insufficient to support a repayment plan.”
3