FILED
NOT FOR PUBLICATION FEB 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGELA D. WALTON, No. 11-56023
Plaintiff - Appellant, D.C. No. 2:11-cv-02445-R-FMO
v.
MEMORANDUM*
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS INC.; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted February 7, 2013**
Pasadena, California
Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.
Plaintiff-Appellant Angela D. Walton appeals the district court’s order
dismissing her complaint against Defendants-Appellees Mortgage Electronic
*
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).
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Registration Systems, Inc. (“MERS”), Chase Home Loan Finance, LLC, and Chase
Home Finance, LLC (collectively, “Appellees”). The parties are familiar with the
facts of the case and we do not repeat them here. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
Most of Walton’s claims are predicated on her contention that the Appellees
lacked authority to make transfers of various interests in the deed of trust and
foreclose. We have previously rejected claims challenging foreclosure proceedings
predicated on MERS’s involvement. Cervantes v. Countrywide Home Loans, Inc.,
656 F.3d 1034, 1041–46 (9th Cir. 2011). The California courts agree. See, e.g.,
Herrera v. Fed. Nat’l Mortg. Ass’n, 205 Cal. App. 4th 1495, 1498, 1503–08
(2012). Additionally, there is no requirement that a trustee consent to a
substitution of trustee. See Cal. Civ. Code § 2934a(d). In addition, MERS’s role
and the lender’s authority to substitute the trustee were disclosed to Walton in the
deed of trust. Consequently, the district court correctly dismissed Walton’s claims
to the extent that they were based on Appellees’ alleged lack of authority.
Walton’s remaining claims and allegations are either legally infirm or
factually implausible. The contentions in her brief that the deed of trust was forged
are contradicted by her admissions in her verified complaint that she borrowed the
money and signed the deed of trust. Additionally, even if the notary’s certification
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on the deed of trust was false, as she contends, she has not plausibly alleged that it
injured her. Walton cannot prevail on her negligence claim because even if
Appellees kept inaccurate records, she admits that she fell behind on her payments
and has not alleged that she could have avoided default. Walton’s claims
predicated on California Civil Code § 2932.5 fail because that provision only
applies to mortgages, not deeds of trust. Herrera, 205 Cal. App. 4th at 1508–10.
Assuming California Civil Code § 2923.5 is applicable, Walton’s claims predicated
on that section also fail because the sole remedy available under that section “is a
postponement of the sale before it happens.” Mabry v. Superior Court, 185 Cal.
App. 4th 208, 235 (2010). As the foreclosure sale here has already occurred, that
remedy is no longer available. Walton has also not alleged that she suffered the
prejudice or injury necessary to state a claim for wrongful foreclosure or for
cancellation under California Civil Code § 3412. Even if her contentions are true,
she is not an injured party, the injured parties are the true owners of her loan. See
Herrera, 205 Cal. App. 4th at 1507-08.
The district court did not abuse its discretion in dismissing Walton’s
complaint with prejudice because any amendment would be futile. See McQuillion
v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004).
AFFIRMED.
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