Gibson v. PNC Bank National Ass'n

NOT FOR PUBLICATION FILED
DEC 7 2016
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

RON GIBSON, LORI A. GIBSON FKA No. 14-35380
LORI A. REED, and SHON GIBSON,
D.C. No. 1:13-cv-01819-CL
Plaintiffs - Appellants,
MEMORANDUM*
v.

PNC BANK NATIONAL ASSOCIATION,
ET AL.,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Oregon
Owen W. Panner, District Judge, Presiding

Submitted October 3, 2016**
Portland, Oregon

Before: CLIFTON, MURGUIA, and NGUYEN, Circuit Judges.

*
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).
Lori, Shon, and Ron Gibson appeal from the district court’s order dismissing

their claims for declaratory judgment and permanent injunction against Appellees

(collectively, Creditors). The Gibsons challenged the validity of a nonjudicial

foreclosure and sale of property. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm the district court’s judgment.

1. With respect to Lori and Shon’s claims, we affirm the district court’s

grant of Creditors’ motion to dismiss. Lori and Shon previously brought a suit

against the same Creditors, seeking similar relief. The district court in the first case

dismissed their claims for lack of standing, with prejudice. Lori and Shon concede

their previous claim rested on allegations substantially similar to those in the

present case. A federal court sitting in diversity looks to relevant state law on

questions of claim preclusion. Semtek Int’l Inc. v. Lockheed Martin Corp., 531

U.S. 497, 508 (2001); see Taco Bell Corp. v. TBWA Chiat/Day Inc., 552 F.3d

1137, 1144 (9th Cir. 2009). “Under Oregon law, a dismissal ‘with prejudice’

creates a claim-preclusive bar, even if the dismissal was due to a procedural fault

and not a decision on the substantive validity of the action.” Cornus Corp. v. Geac

Enter. Sols., Inc., 289 P.3d 267, 273 (Or. Ct. App. 2012) (emphasis added). A

previous judgment with claim-preclusive effect “prohibits a party from relitigating

a cause of action against the same defendant involving the same factual transaction

as was litigated in the previous adjudication[.]” See Krisor v. Lake Cty. Fair Bd.,

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302 P.3d 455, 457 (Or. Ct. App. 2013). Claim preclusion also bars “all claims

against the defendant that were available to the plaintiff arising from that

transaction, whether or not the plaintiff actually asserted them.” Lee v. Mitchell,

953 P.2d 414, 420 (Or. Ct. App. 1998). Claim preclusion therefore bars Lori and

Shon’s claims, including the limited new allegations.

2. We affirm the district court’s dismissal of Ron’s claims, as well,

though on a different ground than the district court. United States v. Washington,

969 F.2d 752, 755 (9th Cir. 1992). Ron has standing to challenge the foreclosure

and sale based on the property interest he acquired via his quitclaim deed. See

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016). Under the Oregon Trust

Deed Act (OTDA), if essential procedures were not followed, Ron’s property

interest was not automatically extinguished by the sale. See Woods v. U.S. Bank,

No. 13-36037, 2016 WL 4120687, at *2, *5 (9th Cir. Aug. 3, 2016). Nonetheless,

there are some limits on his standing. Ron can only protect his own property

interest, rather than Lori and Shon’s. See Ray Charles Found. v. Robinson, 795

F.3d 1109, 1118–19 (9th Cir. 2015). Ron also may not bring a claim based on

violations of the Pooling and Servicing Agreement (PSA), because he was not a

party to the PSA. See Oliver v. Delta Fin. Liquidating Trust, No. 6:12-CV-00869,

2012 WL 3704954, at *4 (D. Or. Aug. 27, 2012).

3
3. Though Ron has standing, he lacks any cause of action under the

OTDA. When failures to comply with OTDA procedures in a nonjudicial

foreclosure and sale violate grantors’ “substantive rights,” this can support a post-

sale challenge from the grantor. Woods v. U.S. Bank, No. 13-36037, 2016 WL

4120687, at *5 (9th Cir. Aug. 3, 2016). The cause of action recognized in Woods is

consistent with the statutory scheme of the OTDA, which balances between the

interests of creditors and the rights of grantors. Id. at *4–5; see Staffordshire

Investments, Inc. v. Cal-W. Reconveyance Corp., 149 P.3d 150, 157 (Or. Ct. App.

2006). Ron’s status as a non-grantor raises the issue of “whether a claim may be

maintained by the party asserting it” See Ray Charles Found. v. Robinson, 795

F.3d 1109, 1121 (9th Cir. 2015). We presume that “a statutory cause of action

extends only to plaintiffs whose interests fall within the zone of interests protected

by the law invoked.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S.

Ct. 1377, 1388 (2014) (internal quotation marks omitted). Non-grantors, like Ron,

do not fall within the “zone of interests” protected by the OTDA. See id. Further,

entertaining post-sale challenges from non-grantors would disturb the OTDA’s

“carefully struck balance” between the rights of grantors and the interests of

creditors. Woods, 2016 WL 4120687, at *4. There is no direct authority to support

a post-sale challenge from a party in Ron’s position, and no basis to extend the

cause of action recognized in Woods to a non-grantor.

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AFFIRMED.