Shawn Gordon v. U.S. Bank, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 10, 2021
• Docket: 20-55850
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SHAWN GORDON, No. 20-55850

Plaintiff-Appellant, D.C. No. 2:18-cv-10075-DMG-PLA v.

U.S. BANK, N.A.; FAY SERVICING, LLC, MEMORANDUM*

Defendants-Appellees,

and

OLD REPUBLIC DEFAULT MANAGEMENT SERVICES; QUALITY LOAN SERVICE CORPORATION,

Defendants.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Submitted August 6, 2021** Pasadena, California

Before: PAEZ, CALLAHAN, and HURWITZ, Circuit Judges.

* 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). In this action, Shawn Gordon claims that the servicers of his home loan

secured by a deed of trust violated California Civil Code § 2923.6 and the Federal

Truth in Lending Act (“TILA”), 15 U.S.C. § 1641(g). The district court granted

summary judgment to the defendants. We have jurisdiction under 28 U.S.C. § 1291

and affirm.

1. Like the district court, we assume without deciding that the defendant loan

servicers engaged in dual tracking in violation of § 2923.6 by seeking to foreclose

on Gordon’s home while he attempted to modify his loan. But § 2924.12 permits a

borrower to enforce violations of § 2923.6 until the servicer has “corrected and

remedied” the violation “prior to the recordation of the trustee’s deed upon sale.”

Id. § 2924.12(b). The defendants never foreclosed on the property and rescinded all

prior notices of default after Gordon sought modification of his loan. The defendants

paused all foreclosure procedures while they considered Gordon’s applications and

issued final determinations on those applications before resuming foreclosure

activities. See Berman v. HSBC Bank USA, N.A., 11 Cal. App. 5th 465, 473 (2017).

The district court therefore correctly rejected Gordon’s state law claim.

2. Gordon claims that the defendants violated the TILA requirement that a

creditor notify a borrower of any change in his loan’s ownership within 30 days. 15

U.S.C. § 1641(g)(1). It is undisputed, however, that he received timely notice that

the Truman Trust purchased his loan from U.S. Bank in 2018. Gordon argues that

2 the notice was invalid because it came from an agent who had not yet begun

servicing his loan, and that only “the creditor” may send such a notice. Id. But, the

TILA provides only that “the creditor that is the new owner or assignee of the debt”

must provide the notice within 30 days of the loan being “sold or otherwise

transferred.” Id. The district court correctly held that because Gordon timely

received the required notice, his TILA claim fails.

AFFIRMED.