                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 17 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PATRICK LOWTHER, individually and                No.   14-16345
on behalf of all others similarly situated,
                                                 D.C. No.
              Plaintiff-Appellant,               1:13-cv-00235-LEK-BMK

 v.
                                                 MEMORANDUM*
U.S. BANK, U.S. Bank National
Association as Trustee under Pooling and
Servicing Agreement dated as of
December 1, 2006 Mastr Asset Backed
Securities Trust 2006-HE5 Mortgage Pass-
Through Certificates Series 2006-HE5
and DOE DEFENDANTS, 1-50,

              Defendants-Appellees.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                      Argued and Submitted October 11, 2017
                                Honolulu, Hawaii

Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Patrick Lowther (“Lowther” or “Appellant”) appeals the district court’s

rulings dismissing with prejudice the wrongful foreclosure-based claims he

asserted against U.S. Bank, N.A. (“U.S. Bank” or “Appellee”). We have

jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

      1. Lowther’s claim for wrongful foreclosure fails because as a borrower, he

was “neither . . . a party to nor a beneficiary of the assignment and transfer” at

issue and therefore “lacks standing” to bring suit on this basis. Brodie v. Nw. Tr.

Servs., Inc., 579 F. App’x 592, 593 (9th Cir. 2014); see also Velasco v. Sec. Nat’l

Mortg. Co., 823 F. Supp. 2d 1061, 1067 (D. Haw. 2011) (“[A]s strangers to the

Assignment and without any evidence or reason to believe that they are intended

beneficiaries of that contract, Plaintiffs may not dispute the validity of the

Assignment.”). Even assuming he had standing, his wrongful foreclosure claims

would still fail. The record establishes U.S. Bank lawfully acquired Lowther’s

loan through a series of transfers and was therefore entitled to proceed with

foreclosure. See Bank of Am., N.A. v. Reyes-Toledo, 390 P.3d 1248, 1254 (Haw.

2017). That his lender, New Century Mortgage Corporation (“New Century”),

may have transferred his note while in bankruptcy proceedings, without permission

from the Liquidation Trustee, does not void the transfer, as he claims. Such

transfers are merely “voidable by the trustee,” not void as a matter of law. In re


                                           2
Jim L. Shetakis Distrib. Co., 401 F. App’x 249, 251 (9th Cir. 2010) (citing Burkart

v. Coleman, 542 F.3d 684, 691–92 (9th Cir. 2008)).

      2. As Lowther premises his claim for unfair or deceptive acts and practices

(“UDAP”), Haw. Rev. Stat. § 480-2, on the same allegations on which he bases his

wrongful foreclosure claim, his UDAP claims also fail under Hawaii law.

      3. As for Lowther’s claim for intentional interference with prospective

business advantage (“IIPEA”), the district court correctly dismissed it because

Lowther failed to allege “the existence of a valid business relationship or a

prospective advantage.” Haw. Med. Ass’n v. Haw. Med. Serv. Ass’n, 148 P.3d

1179, 1218 (Haw. 2006) (citations omitted).

      AFFIRMED.




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