Vu Nguyen v. Aurora Loan Services , 614 F. App'x 881 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VU NGUYEN, an individual, No. 13-55737
Plaintiff - Appellant, D.C. No. 5:12-cv-00098-GW-DTB
v.
MEMORANDUM*
AURORA LOAN SERVICES, LLC,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted June 2, 2015**
Pasadena, California
Before: M. SMITH and N.R. SMITH, Circuit Judges and LAMBERTH,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
Vu Nguyen appeals the district court’s grant of summary judgment in favor
of Aurora Loan Services, LLC, in Nguyen’s diversity action, alleging negligence,
wrongful foreclosure, and other causes of action arising from the non-judicial
foreclosure of Nguyen’s property. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. The district court properly granted summary judgment to Aurora on
Nguyen’s breach of the covenant of good faith and fair dealing claim. Nguyen
argued Aurora breached the covenant of good faith and fair dealing by failing to
“work with him” to modify his loan after the expiration of the Workout
Agreement. However, Nguyen failed to identify any express contract term
obligating Aurora to offer him another loan modification at the expiration of the
Workout Agreement. Although the Workout Agreement stated that, at its
conclusion, Aurora may offer Nguyen another loan workout option, it did not
obligate Aurora to do so. See Racine & Laramie, Ltd. v. Dep’t of Parks &
Recreation, 14 Cal. Rptr. 2d 335, 339 (Ct. App. 1992) (“If there exists a
contractual relationship between the parties, . . . the implied covenant is limited to
assuring compliance with the express terms of the contract, and cannot be extended
to create obligations not contemplated in the contact.”)
2
Nguyen also failed to plead facts demonstrating that Aurora had an implied
duty to work with him to identify and implement a foreclosure prevention
alternative. Nguyen’s Workout Agreement was a commercial, in-house agreement
offered by Aurora. It was not a forbearance agreement offered pursuant to the
Fannie Mae HomeSaver program or a temporary payment plan (“TPP”) agreement
under the Home Affordable Modification Program (“HAMP”). Lueras v. BAC
Home Loans Servicing, LP, 163 Cal. Rptr. 3d 804, 825-27 (Ct. App. 2013).
Because Nguyen’s Workout Agreement was not offered as part of any federal loss
mitigation program, Aurora had no implied duty to comply with the HAMP United
States Treasury directives. See id.
2. The district court did not err in dismissing Nguyen’s breach of contract and
promissory estoppel claims. First, Nguyen cannot plead a plausible breach of
contract claim, because it was Nguyen (not Aurora) who breached the Workout
Agreement by failing to make timely payments. Second, Nguyen fails to plead
facts demonstrating a clear and unambiguous promise by Aurora to offer Nguyen a
loan modification that would prevent foreclosure. See US Ecology, Inc. v. State, 28
Cal. Rptr. 3d 894, 905 (Ct. App. 2005) (citing Laks v. Coast Fed. Sav. & Loan
Ass’n., 131 Cal. Rptr. 836, 839 (Ct. App. 1976)).
3
3. The district court did not err in entering summary judgment on Nguyen’s
claim for a violation of 15 U.S.C. § 1639f. Nguyen’s claim fails as a matter of law,
because the statute did not go into effect until January 21, 2013, after Aurora’s
alleged wrongful acts. See Mortgage Reform and Anti-Predatory Lending Act,
Pub. L. No. 111-203, 124 Stat. 2136 (2010). No party suggested the statute
applied retroactively.
4. Nguyen failed to plead a plausible cause of action for a violation of the
California Business and Professions Code § 17200 (“UCL”). First, Nguyen failed
to plead facts demonstrating that Aurora unfairly or deceptively placed his
payments into a suspense account. Rather, pursuant to the Workout Agreement,
Nguyen specifically and expressly authorized Aurora to hold his partial payments
in a suspense account. Additionally, there is no evidence in the record
demonstrating that any late fees were the result of Aurora’s alleged misapplication
of his payments rather than Nguyen’s own failure to timely pay the loan amounts
due.
Second, Nguyen’s UCL violation claims, based on the alleged use of robo-
signers and the unfair or deceptive use of the Mortgage Electronic Registration
Systems, Inc. (“MERS”) fail, because Nguyen did not have standing to contest the
alleged fraudulent transfer of his deed of trust. See Fontenot v. Wells Fargo Bank,
4
N.A., 129 Cal. Rptr. 3d 467, 481 (Ct. App. 2011) (explaining that even “if MERS
lacked authority to transfer the note, it [was] difficult to conceive how plaintiff was
prejudiced by [the alleged defective assignment] . . . [b]ecause a promissory note is
a negotiable instrument [and] a borrower must anticipate it can and might be
transferred to another creditor . . . without changing [plaintiff’s] obligations under
the note”); Herrera v. Fed. Nat. Mortg. Ass’n, 141 Cal. Rptr. 3d 326, 333 (Ct. App.
2012) (reiterating that California’s foreclosure statutes authorizing a “trustee,
mortgagee, or beneficiary, or an agent of any of them [to] initiate foreclosure, [do]
not include a requirement that an agent demonstrate authorization by its
principal”).
5. The district court properly declined to grant Nguyen’s request to amend his
complaint for a third time. Nguyen did not demonstrate how he would cure the
defects if leave were granted. See Lipton v. Pathogenesis Corp., 284 F.3d 1027,
1039 (9th Cir.2002).
AFFIRMED.
5