Patrick Lowther v. U.S. Bank , 702 F. App'x 517 ( 2017 )

FILED
NOT FOR PUBLICATION
NOV 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK LOWTHER, individually and No. 14-16345
on behalf of all others similarly situated,
D.C. No.
Plaintiff-Appellant, 1:13-cv-00235-LEK-BMK
v.
MEMORANDUM*
U.S. BANK, U.S. Bank National
Association as Trustee under Pooling and
Servicing Agreement dated as of
December 1, 2006 Mastr Asset Backed
Securities Trust 2006-HE5 Mortgage Pass-
Through Certificates Series 2006-HE5
and DOE DEFENDANTS, 1-50,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted October 11, 2017
Honolulu, Hawaii
Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Patrick Lowther (“Lowther” or “Appellant”) appeals the district court’s
rulings dismissing with prejudice the wrongful foreclosure-based claims he
asserted against U.S. Bank, N.A. (“U.S. Bank” or “Appellee”). We have
jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.
1. Lowther’s claim for wrongful foreclosure fails because as a borrower, he
was “neither . . . a party to nor a beneficiary of the assignment and transfer” at
issue and therefore “lacks standing” to bring suit on this basis. Brodie v. Nw. Tr.
Servs., Inc., 579 F. App’x 592, 593 (9th Cir. 2014); see also Velasco v. Sec. Nat’l
Mortg. Co., 823 F. Supp. 2d 1061, 1067 (D. Haw. 2011) (“[A]s strangers to the
Assignment and without any evidence or reason to believe that they are intended
beneficiaries of that contract, Plaintiffs may not dispute the validity of the
Assignment.”). Even assuming he had standing, his wrongful foreclosure claims
would still fail. The record establishes U.S. Bank lawfully acquired Lowther’s
loan through a series of transfers and was therefore entitled to proceed with
foreclosure. See Bank of Am., N.A. v. Reyes-Toledo, 390 P.3d 1248, 1254 (Haw.
2017). That his lender, New Century Mortgage Corporation (“New Century”),
may have transferred his note while in bankruptcy proceedings, without permission
from the Liquidation Trustee, does not void the transfer, as he claims. Such
transfers are merely “voidable by the trustee,” not void as a matter of law. In re
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Jim L. Shetakis Distrib. Co., 401 F. App’x 249, 251 (9th Cir. 2010) (citing Burkart
v. Coleman, 542 F.3d 684, 691–92 (9th Cir. 2008)).
2. As Lowther premises his claim for unfair or deceptive acts and practices
(“UDAP”), Haw. Rev. Stat. § 480-2, on the same allegations on which he bases his
wrongful foreclosure claim, his UDAP claims also fail under Hawaii law.
3. As for Lowther’s claim for intentional interference with prospective
business advantage (“IIPEA”), the district court correctly dismissed it because
Lowther failed to allege “the existence of a valid business relationship or a
prospective advantage.” Haw. Med. Ass’n v. Haw. Med. Serv. Ass’n, 148 P.3d
1179, 1218 (Haw. 2006) (citations omitted).
AFFIRMED.
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