Gary Gosha v. Bank of New York Mellon Corp.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 1, 2024
• Docket: 22-35940
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GARY C. GOSHA, an individual and Nos. 22-35940 together as husband and wife; KIT M. GOSHA, an individual and together as D.C. No. 3:19-cv-00470-HZ husband and wife,

Plaintiffs - Appellants, MEMORANDUM*

v.

BANK OF NEW YORK MELLON CORP., FKA Bank of New York, As Trustee (CWALT 2005-72); et al.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding

Submitted January 30, 2024** San Francisco, California

Before: FRIEDLAND, SANCHEZ, and H.A. THOMAS, Circuit Judges.

Plaintiffs-Appellants Gary C. Gosha and Kit M. Gosha (collectively, “the

* 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). Goshas”) appeal pro se from the district court’s grant of summary judgment in

favor of Defendants-Appellees Bank of New York Mellon Corp. (“BONY”),

Community Loan Servicing, LLC (“Community”), and Clear Recon Corp.

(“CRC”) on federal and state law claims related to nonjudicial foreclosure

proceedings.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo questions

of mootness, the grant of summary judgment, and an unexplained denial of a

continuance for further discovery. All. for the Wild Rockies v. U.S. Dep't of Agric.,

772 F.3d 592, 598 n.3 (9th Cir. 2014); Qualls ex rel. Qualls v. Blue Cross of Cal.,

Inc., 22 F.3d 839, 844 (9th Cir. 1994). We review the district court’s denial of

leave to amend and award of attorney’s fees for abuse of discretion. Cafasso, U.S.

ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058, 1062 (9th Cir. 2011).

We affirm.

1. BONY’s voluntary recission of nonjudicial foreclosure proceedings,

two months after the Goshas commenced this action in district court, did not moot

the Goshas’ claims. The Goshas sought monetary damages for breach of contract

and violations of the Oregon Unfair Trade Practices Act (“OUTPA”), Fair Debt

Collection Practices Act (“FDCPA”), and Real Estate Settlement Procedures Act

(“RESPA”). The Goshas’ “pursuit of monetary relief ensure[d] that the case

‘remain[ed] definite and concrete, touching the legal relations of parties having

2 adverse legal interests.’” Logan v. U.S. Bank Nat'l Ass'n, 722 F.3d 1163, 1166 (9th

Cir. 2013) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 371 (1982)).

Furthermore, “[t]he voluntary cessation of challenged conduct moots a case ‘only

if it is absolutely clear that the allegedly wrongful behavior could not reasonably

be expected to recur.’” R. W. v. Columbia Basin Coll., 77 F.4th 1214, 1225 (9th

Cir. 2023) (citation omitted). BONY made no commitment to abandon future

nonjudicial foreclosure proceedings and has since initiated nonjudicial foreclosure

proceedings against the Goshas. The Goshas’ claims are not moot.

2. The district court properly granted summary judgment on the Goshas’

breach of contract claim.1 Fed. R. Civ. P. 56(a). To establish a claim for breach

of contract under Oregon law, a “plaintiff must allege the existence of a contract,

its relevant terms, plaintiff’s full performance and lack of breach and defendant’s

breach resulting in damage to plaintiff.” Slover v. Or. State Bd. of Clinical Soc.

Workers, 144 Or. App. 565, 570 (1996) (internal quotations omitted). The Goshas

do not dispute that they defaulted on their mortgage after failing to make a

mortgage payment since 2011, and they are therefore in material breach of the

Deed of Trust. Com. Mortg. Co. v. Indus. Park Co., 101 Or. App. 345, 349 (1990)

1 In their opening brief, the Goshas only challenged the summary judgment decision with respect to their breach of contract claim. The Goshas do not address, and have therefore forfeited, any challenge to the district court’s grant of summary judgment on their OUTPA, FDCPA, or RESPA claims. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993).

3 (“A breach is material if it goes to the substance of the contract and defeats the

object of the parties’ entering into the contract.”). Because the Goshas cannot

establish full performance and lack of breach, their breach of contract claim is not

actionable under Oregon law.

3. The district court did not err in denying the Goshas’ request for a

continuance of the summary judgment proceedings to conduct further discovery.

See Qualls ex rel. Qualls, 22 F.3d at 844 (explaining that district courts do not

need to explicitly state their decision on a Rule 56(d) request, but that we review

de novo unexplained 56(d) rulings). Denial was appropriate because the Goshas

failed to identify specific facts likely to be revealed through further discovery

which would preclude summary judgment. See Sec. & Exch. Comm'n v. Stein, 906

F.3d 823, 833 (9th Cir. 2018). We also reject the Goshas’ contention that the

district court abused its discretion by denying leave to file a third amended

complaint at a point when the parties had already conducted discovery and a

summary judgment motion had been filed. See Design Data Corp. v. Unigate

Enter., Inc., 847 F.3d 1169, 1173 (9th Cir. 2017).

4. Finally, the district court did not abuse its discretion by granting

attorney’s fees under Section 22 of the Deed of Trust as a separate award rather

than adding it to the Goshas’ existing loan amount. The Goshas’ claims are

premised on violations of Section 22 of the Deed of Trust, which states that the

4 “[l]ender shall be entitled to collect . . . reasonable attorneys’ fees and costs”

incurred in pursuit of remedies to a default such as acceleration or sale. Section 22

does not require that attorney’s fees be assessed as an additional debt of the

borrower secured by the Deed of Trust.2

AFFIRMED.

2 By separate order, we denied the Goshas’ motion for leave to file a supplemental brief which raised new arguments that had not presented in their opening brief and were therefore waived. See AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1214 (9th Cir. 2020). We deny the Goshas’ request for reconsideration of that order.