Rickey Gilliam v. Bank of America, N.A. ( 2020 )

FILED
NOT FOR PUBLICATION
SEP 8 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICKEY M. GILLIAM; BARBARA L. No. 19-55325
GILLIAM,
D.C. No.
Plaintiffs-Appellants, 8:17-cv-01296-DOC-JPR
v.
MEMORANDUM*
BANK OF AMERICA, NA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted September 3, 2020 **
Pasadena, California
Before: GOULD and IKUTA, Circuit Judges, and EZRA,*** District Judge.
*
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 Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
Rickey Gilliam and Barbara Gilliam (collectively, the “Gilliams”) appeal the
district court’s judgments for defendants Bank of America, N.A. (BANA);
Recontrust Company, N.A.; Nationstar Mortgage, LLC; HSBC Bank USA, N.A.;
and Xome Holdings LLC (on behalf of its wholly-owned subsidiary, defendant
Veriprise Processing Solutions, LLC). We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
The district court did not err in denying the Gilliams’ motion to remand the
case to state court. The district court had jurisdiction under 28 U.S.C. § 1332(a)
because the non-diverse defendants, Recontrust and Quality Loan Services
(Quality), were fraudulently joined. GranCare, LLC v. Thrower ex rel. Mills, 889
F.3d 543, 548 (9th Cir. 2018). The Gilliams’ claims against Quality were barred
because Quality’s challenged conduct was privileged under section 2924(d) of the
California Civil Code. See McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339
(9th Cir. 1987). The Gilliams’ claims against Recontrust were barred by the res
judicata effect of their prior litigation.
The district court did not err in dismissing Recontrust and Mortgage
Electronic Registration Systems, Inc. (MERS) with prejudice on res judicata
grounds. The Gilliams’ argument that res judicata does not bar their claims for
harms concealed by the defendants, or for new harms that occurred after the prior
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litigation fails. The Gilliams failed to show that they were not negligent in failing
to discover the allegedly concealed harms, Costantini v. Trans World Airlines, 681
F.2d 1199, 1202–03 (9th Cir. 1982), and neither MERS nor Recontrust caused
“new” harms after the prior litigation under California law, see Atwell v. City of
Rohnert Park, 27 Cal. App. 5th 692, 702 (2018). Therefore, the Gilliams’ claims
against MERS and Recontrust are barred by the res judicata effect of the prior
litigation.
The district court did not err in dismissing BANA, because all claims against
BANA were premised on the assignment of the Deed of Trust in 2013, and, under
California law, the Gilliams lacked standing to challenge the assignment in a
preforeclosure context. Saterbak v. JPMorgan Chase Bank, N.A., 245 Cal. App.
4th 808, 815, 819–20 (2016); Perez v. Mortg. Elec. Registration Sys., Inc., 959
F.3d 334, 339 (9th Cir. 2020).
The district court did not err in granting the motion for summary judgment
in favor of HSBC. All claims premised on the challenged assignments of the Deed
of Trust fail because the Gilliams lack standing to bring them before foreclosure.
Saterbak, 245 Cal. App. 4th at 819–20. Therefore, the Gilliams’ argument that
HSBC was not a creditor did not raise a “genuine dispute as to any material fact” to
preclude the district court’s grant of summary judgment. Fed. R. Civ. P. 56(a).
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AFFIRMED
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