                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 17 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LEONARD GOMES, JR.,                              No. 13-16236

              Plaintiff - Appellant,             D.C. No. 1:12-cv-00311-SOM-
                                                 BMK
 v.

BANK OF AMERICA, N.A. and BAC                    MEMORANDUM*
HOME LOANS SERVICING, LP,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Hawaii
                Susan Oki Mollway, Chief District Judge, Presiding

                           Submitted February 10, 2016**
                                Honolulu, Hawaii

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

      Plaintiff Leonard Gomes, Jr., appeals the district court’s order granting

summary judgment in favor of Defendants on Gomes’s negligence claim and on

Gomes’s unfair and deceptive acts and practices (UDAP) claim brought under

        *
             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).
Hawaii Revised Statutes § 480-2. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      1. Assuming that Defendants had a duty of care and breached it, Gomes

failed to establish a triable issue as to whether the breach caused him any injury.

First, Defendants were not responsible for Gomes’s default. Gomes defaulted

because he could no longer afford payments, not because he relied on Defendants’

statements or was expecting a loan modification. Defendants’ statements did not

cause Gomes to forgo other options. He tried to sell his house but did not receive

any offers on it.

      Second, Gomes did not show that Defendants’ actions negatively affected

his credit after he defaulted. Gomes rejected the loan modification offer he

ultimately received because he could not afford its payments. He defaulted on

other mortgages and did not show that the damage to his credit was proximately

caused by Defendants’ actions here. Further, Gomes provided no evidence that,

absent Defendants’ actions, he would have successfully pursued the alternative

forms of relief he identifies on appeal, such as reorganization through bankruptcy.

      Third, Gomes admitted that he paid no costs and fees associated with a delay

in processing his loan modification applications, and he presented no evidence that

he accrued such costs and fees.


                                          2
      2.       Because Gomes did not create a triable issue that Defendants’ actions

injured him, he also failed to create a triable issue on his UDAP claim, which

required that he demonstrate “an injury resulting in damages.” Compton v.

Countrywide Fin. Corp., 761 F.3d 1046, 1056 (9th Cir. 2014). We decline to

analyze Gomes’s UDAP claim under the “relaxed burden” reserved for antitrust

claims because Gomes’s claim rests only on unfair or deceptive acts or practices.

See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)

(noting that compensable antitrust injury should “reflect the anticompetitive effect

either of [defendants’] violation or of anticompetitive acts made possible by the

violation”).

      AFFIRMED.




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