James Herman v. U.S. Bank

591 F. App'x 630

Opinion

MEMORANDUM **

Appellant James Herman appeals the district court’s dismissal of his complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. We have jurisdiction under 28 U.S.C. § 1291.

Herman does not contest that he is in default on his mortgage or that the original lender could foreclose on his home. Instead, he premises his wrongful foreclosure claim on “asserted defects in the chain of assignments and the absence of ‘lawful ownership’ of the note” by the defendants. Debrunner v. Deutsche Bank Nat’l Trust Co., 204 Cal.App.4th 433, 444, 138 Cal.Rptr.3d 830 (2012). Such defects are insufficient to show prejudice, see id. at 443-44, 138 Cal.Rptr.3d 830, and Herman failed to plead any other facts demonstrating prejudice. Therefore, the district court did not err in dismissing Herman’s claim for wrongful foreclosure. See Herrera v. Fed. Nat’l Mortg. Ass’n, 205 Cal.App.4th 1495, 1507, 141 Cal.Rptr.3d 326 (2012).

For the first time on appeal, Herman argues that the defendants breached their duty of care by failing to provide an adequate response to his inquiries regarding a loan modification. Herman waived this theory of relief because he failed to raise this claim in his complaint or to the district court. See Turnacliff v. Westly, 546 F.3d 1113, 1120 (9th Cir.2008). Even if we were to address the merits of this claim, we would affirm the district court, because the defendants did not agree to review and process Herman’s loan modification and therefore did not owe him a duty of care. See Lueras v. BAC Home Loans Servicing, LP, 221 Cal.App.4th 49, 67, 163 Cal.Rptr.3d 804 (2013); see also Alvarez v. BAC Home Loans Servicing, L.P., 228 Cal.App.4th 941, 948-49, 176 Cal.Rptr.3d 304 (2014) (finding a duty where “defendants allegedly agreed to consider modification of the plaintiffs’ loans”).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.