Richard Gray v. Ocwen Mortgage Servicing, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 12, 2021
• Docket: 20-15793
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 12 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD GRAY; KIMBERLY GRAY, No. 20-15793

Plaintiffs-Appellants, D.C. No. 3:18-cv-01864-JD

v. MEMORANDUM* OCWEN MORTGAGE SERVICING, INC.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Submitted March 10, 2021** San Francisco, California

Before: McKEOWN, IKUTA, and BRESS, Circuit Judges.

Richard and Kimberly Gray appeal from the district court’s dismissal with

prejudice of their operative complaint. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

* 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). The operative complaint failed to state a claim for relief because the credit

report was not misleading or inaccurate in violation of the federal Fair Credit

Reporting Act or California’s Consumer Credit Reporting Agencies Act. First,

neither Richard Gray’s bankruptcy discharge nor section 580b of the California

Code of Civil Procedure affected Kimberly Gray’s responsibility to make the loan

payments before a foreclosure of the property. See Blixseth v. Credit Suisse, 961

F.3d 1074, 1082 (9th Cir. 2020); Cal. Civ. Proc. Code § 580b (2005). Second, the

report of the overdue payments is accurate and relevant to Kimberly Gray’s

creditworthiness, notwithstanding the fact that the only recourse the lender had for

Kimberly’s failure to pay the overdue amount would be to foreclose on the

property. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 891 (9th Cir.

2010). Because Kuns v. Ocwen Loan Servicing, LLC, considered a post-

foreclosure credit report that included the amount of the uncollectible deficiency

resulting from the foreclosure sale, 611 F. App’x 398, 400 (9th Cir. 2015), even

were it binding on us, it would have no bearing on the pre-foreclosure credit report

at issue in this case. Contrary to the Grays’ argument, there is no factual dispute

for the jury. Cf. Drew v. Equifax Info. Servs., LLC, 690 F.3d 1100, 1108 (9th Cir.

2012). The Grays’ claim under California’s Unfair Business Practices Act is

2 predicated on the same credit reporting allegations and therefore fails for the

reasons we have stated. We therefore affirm the district court’s dismissal.

Further, the Grays’ opening brief on appeal failed to raise a challenge to the

district court’s dismissal of the operative complaint on the ground that it was an

improper request for reconsideration of the court’s dismissal of their second

amended complaint. Therefore, the Grays forfeited this claim, and we also affirm

the district court’s dismissal on that basis. Padgett v. Wright, 587 F.3d 983,

985–86 & n.2 (9th Cir. 2009) (per curiam).

AFFIRMED.