 1                              NOT FOR PUBLICATION                            FILED
 2
 3                       UNITED STATES COURT OF APPEALS                        OCT 26 2018
 4                                                                         MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS
 5                              FOR THE NINTH CIRCUIT
 6
     VERNON DECK,                                    No.    17-16680

                     Plaintiff-Appellant,            D.C. No. 2:17-cv-00234-MCE-KJN

      v.
                                                     MEMORANDUM*
     WELLS FARGO BANK, N.A., National
     Association, as Trustee for Option One
     Mortgage Loan Trust 2003-1, Asset-Backed
     Certificates, Series 2003-1; et al.,

                     Defendants-Appellees.
 7
 8                     Appeal from the United States District Court
 9                         for the Eastern District of California
10                   Morrison C. England, Jr., District Judge, Presiding
11
12                              Submitted October 22, 2018**
13
14   Before:      SILVERMAN, GRABER, and GOULD, Circuit Judges.
15
16         Vernon Deck appeals pro se from the district court’s judgment dismissing

17   his action alleging violations of the Fair Debt Collection Practices Act, the

18   California Homeowner Bill of Rights Act (“HBOR”), and other state law claims


           *
                  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).
 1   arising out of foreclosure proceedings. We have jurisdiction under 28 U.S.C.

 2   § 1291. We review de novo a dismissal for lack of statutory standing. Nat’l

 3   Council of La Raza v. Cegavske, 800 F.3d 1032, 1039 (9th Cir. 2015). We review

 4   for clear error the district court’s underlying factual determinations. Am.-Arab

 5   Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 506 (9th Cir. 1991). We

 6   reverse and remand.

 7         The district court did not commit clear error in finding, following an

 8   evidentiary hearing, that Deck did not sign the note relating to a refinance loan.

 9   See id. at 506. The district court erred, however, in finding that Deck lacked

10   standing to sue for violations of HBOR because he was not a signatory to the note.

11   HBOR defined a “borrower” as “any natural person who is a mortgagor or trustor

12   and who is potentially eligible for any federal, state, or proprietary foreclosure

13   prevention alternative program offered by, or through, his or her mortgage

14   servicer.” Cal. Civ. Code § 2920.5 (repealed Jan. 1, 2018). Because it is

15   undisputed that Deck is a trustor under the deed of trust securing the refinance

16   loan, we reverse and remand for further proceedings on Deck’s claims under

17   HBOR only.

18         We do not consider defendants’ alternative arguments concerning the merits

19   of Deck’s claims under the HBOR, or the effect, if any, of the 2018 repeal of the

20   specific statutory violations alleged.


                                                2                                     17-16680
1         We do not consider matters not raised before the district court, or matters not

2   specifically and distinctly raised and argued in the opening brief. See Padgett v.

3   Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

4         Deck’s request for judicial notice (Docket Entry No. 26) is granted.

5         REVERSED and REMANDED.




                                              3                                   17-16680
