Henry Tapper v. Deutsche Bank National Trust , 606 F. App'x 369 ( 2015 )

FILED
NOT FOR PUBLICATION JUN 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY J. TAPPER, No. 12-16569
Plaintiff - Appellant, D.C. No. 2:11-cv-00088-ROS
v.
MEMORANDUM*
DEUTSCHE BANK NATIONAL TRUST
COMPANY, its assignees and/or
successors-in-interest trustee of
Residential Asset Securitization Trust
2007-A7 Mortgage Pass-Through
Certificates Series 2007-G Under the
Pooling and Servicing Agreement Dated
5/1/07 and ONEWEST BANK, FSB, a
federally chartered savings bank,
individually and as successor-in-interest to
IndyMac Bank FSB successor in interest
IndyMac Bank FSB,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 8, 2015**
San Francisco, California
Before: SCHROEDER, D.W. NELSON, and CHRISTEN, Circuit Judges.
Henry J. Tapper lost his home to foreclosure. He filed suit against Deutsche
Bank National Trust Company and OneWest Bank, FSB, challenging the trustee’s
sale. The district court dismissed Tapper’s claims under Federal Rule of Civil
Procedure 12(b)(6). Tapper timely appealed. We have jurisdiction under 28
U.S.C. § 1291. We review de novo the district court’s dismissal of Tapper’s
claims. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th
Cir. 2008). We affirm.
1. The district court properly dismissed the breach of contract claim in the
amended complaint alleging violation of Treasury Department directives. Tapper
alleged that OneWest violated Treasury Department directives providing guidance
to mortgage loan servicers who contracted with the government to participate in
the Home Affordable Modification Program (HAMP). Even assuming OneWest
agreed to abide by the directives when it contracted with the government—a fact
Tapper’s amended complaint did not allege—the district court properly concluded
that Tapper lacks standing to bring this claim. See Astra USA, Inc. v. Santa Clara
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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Cnty., Cal., 131 S. Ct. 1342, 1347–48 (2011); Klamath Water Users Protective
Ass’n v. Patterson, 204 F.3d 1206, 1211 (9th Cir. 2000) (“Parties that benefit from
a government contract are generally assumed to be incidental beneficiaries, and
may not enforce the contract absent a clear intent to the contrary.”).
2. The district court dismissed the claims in Tapper’s second amended
complaint for failure to comply with A.R.S. § 33-811(C). Each of the claims
challenged the validity of the trustee’s sale. Because Tapper did not file for
injunctive relief despite having notice of the trustee’s sale, he failed to comply with
the statutory prerequisite for challenging the foreclosure. See Ariz. Rev. Stat. § 33-
811(C); BT Capital, LLC v. TD Serv. Co. of Ariz., 275 P.3d 598, 600 (Ariz. 2012)
(en banc). To the extent Tapper argues that OneWest obligated itself to modify his
mortgage notwithstanding the Arizona statute, his claims for promissory estoppel
and breach of the implied covenant of good faith and fair dealing fail because he
did not show that OneWest promised to modify his loan. The information
worksheet and website printout attached to Tapper’s second amended complaint
provide that if a HAMP application is submitted less than 30 days prior to a
scheduled foreclosure sale, it must be sent via certified mail and received and
accepted at least seven days prior to the sale. Tapper’s second amended complaint
alleged his agent faxed (not mailed) application materials to OneWest, including
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some on July 2, 2010, less than seven days before the sale. It did not allege facts
establishing that his HAMP application was accepted by OneWest.
AFFIRMED.
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