                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 11 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

YEOTA CHRISTIE,                                  No. 14-55012

              Plaintiff - Appellant,             D.C. No. 8:12-cv-01691-DOC-
                                                 MLG
 v.

THE BANK OF NEW YORK MELLON,                     MEMORANDUM*
N.A., AS TRUSTEE; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                        Argued and Submitted May 5, 2015
                              Pasadena, California

Before: LIPEZ,** WARDLAW, and MURGUIA, Circuit Judges.

      Yeota Christie contends that she received demands for mortgage payments

from several entities that did not have the authority to make such demands: The

Bank of New York Mellon, N.A., as Trustee for the CWALT Pass-Through

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
               The Honorable Kermit V. Lipez, Senior Circuit Judge for the First
Circuit, sitting by designation.
Certificates CWALT Series 2007-OA3 (the "CWALT Trust"); Bank of America,

N.A.; BAC Home Loans Servicing, LP; and ReconTrust Company, N.A.

(collectively, "Appellees"). Christie alleges that unauthorized and inauthentic

assignments of her loan have rendered her Note and Deed of Trust void and that

Appellees' efforts to collect her debt give rise to five causes of action.1 The district

court granted Appellees' motion to dismiss and Christie filed this timely appeal.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

      1. The district court properly dismissed Christie's claim for declaratory

relief. Her arguments in support of such relief all fail because of lack of standing

or plausibility. As a borrower, Christie does not have standing under California

law to challenge irregularities in the assignment of her Note or Deed of Trust

because those instruments are negotiable and her obligations thereunder remain

unchanged even if her creditor changes. See Jenkins v. JP Morgan Chase Bank,

N.A., 156 Cal. Rptr. 3d 912, 927 (Cal. Ct. App. 2013) (holding that a borrower

lacks standing to challenge transfers of her promissory note to which the borrower

is not a party); see also In re Kirkland, 915 F.2d 1236, 1238-39 (9th Cir. 1990)

(holding that, when applying state law, this Court follows "the decision of the

highest state court," or, in the absence of such a decision and any indication that

      1
          A sixth cause of action, for quiet title, was not revived on appeal.

                                            2
the highest court would rule differently, "the decisions of the state's intermediate

courts").2

      Christie's reliance on the California Commercial Code to confer standing is

misplaced because nonjudicial foreclosures are exclusively governed by the Civil

Code. See Gomes v. Countrywide Home Loans, Inc., 121 Cal. Rptr. 3d 819, 824

(Cal. Ct. App. 2011) (stating that the Civil Code sets forth a "comprehensive

nonjudicial [foreclosure] scheme"). The Civil Code does not allow Christie to

preemptively challenge her foreclosure. See id. ("[N]owhere does the statute

provide for a judicial action to determine whether the person initiating the

foreclosure process is indeed authorized, and we see no ground for implying such

an action.").

      Nor does Christie have standing to challenge the late assignment of her loan

to the CWALT Trust under New York law since Christie is not an intended

beneficiary of the CWALT Trust. See Rajamin v. Deutsche Bank Nat'l Trust Co.,

757 F.3d 79, 88 (2d Cir. 2014) ("[U]nder New York law, only the intended

      2
         The California Supreme Court has agreed to review Yvanova v. New
Century Mortgage Corp., 172 Cal. Rptr. 3d 104 (Cal. Ct. App. 2014), to address
the following question: "In an action for wrongful foreclosure on a deed of trust
securing a home loan, does the borrower have standing to challenge an assignment
of the note and deed of trust on the basis of defects allegedly rendering the
assignment void?" 331 P.3d 1275 (Cal. Aug. 27, 2014). None of Christie's causes
of action are for wrongful foreclosure.

                                          3
beneficiary of a private trust may enforce the terms of the trust."). Glaski v. Bank

of America, N.A., 160 Cal. Rptr. 3d 449 (Cal. App. Ct. 2013), is unpersuasive

authority to the contrary given the vast weight of California precedent, see, e.g.,

Yvanova v. New Century Mortg. Corp., 172 Cal. Rptr. 3d 104, 110 (Cal. Ct. App.

2014) ("[N]o California court has followed Glaksi . . . and many have pointedly

rejected it."), and the Second Circuit's ruling in Rajamin, see Elk Grove Unified

Sch. Dist. v. Newdow, 542 U.S. 1, 16 (2004) ("Our custom on questions of state

law ordinarily is to defer to the interpretation of the Court of Appeals for the

Circuit in which the State is located."), abrogated on other grounds by Lexmark

Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).

      Christie's reliance on the consent order between Bank of America and the

U.S. Comptroller gains her nothing. As the district court held, Christie cannot

enforce the consent order because she is only an incidental third-party beneficiary

of that order. See United States v. FMC Corp., 531 F.3d 813, 820 (9th Cir. 2008)

("[U]nder Ninth Circuit precedent, incidental third-party beneficiaries may not

enforce consent decrees . . . ."); see also Arizona v. California, 530 U.S. 392, 414

(2000) ("[C]onsent judgments ordinarily support claim preclusion but not issue

preclusion [i.e., collateral estoppel]." (internal quotation marks omitted)).




                                           4
      Finally, as the district court found, the annual report that Bank of America

filed with the U.S. Securities and Exchange Commission does not plausibly reveal

any information about Bank of America's handling of Christie's loan specifically.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("The plausibility standard [for

pleadings] is not akin to a 'probability requirement,' but it asks for more than a

sheer possibility that a defendant has acted unlawfully.").

      2. The district court properly dismissed Christie's negligence claim because

she has not alleged that Appellees' role in the loan transaction exceeded that of a

typical moneylender. Therefore, she has not alleged that Appellees owed her a

duty of care. See Nymark v. Heart Fed. Sav. & Loan Ass'n, 283 Cal. Rptr. 53, 56

(Cal. Ct. App. 1991) ("[A]s a general rule, a financial institution owes no duty of

care to a borrower when the institution's involvement in the loan transaction does

not exceed the scope of its conventional role as a mere lender of money."); see also

Kirkland, 915 F.2d at 1238-39. Even if she had alleged a duty, she has not

plausibly alleged a breach. Christie's breach argument is based on Appellees'

alleged failure to properly assign her loan, but Christie's challenges to her loan

assignments necessarily fail for the reasons discussed in section 1, supra.

      3. The district court properly dismissed Christie's Fair Debt Collection

Practices Act ("FDCPA") claim. See 15 U.S.C. § 1692e (prohibiting a "debt


                                           5
collector" from using "any false, deceptive, or misleading representation or means

in connection with the collection of any debt"). Christie alleges that, due to the

unlawful assignment of her loan, Appellees misrepresented their right to collect

loan payments. But as discussed in section 1, supra, Christie cannot successfully

challenge Appellees' right to collect her debt. Since she does not allege any other

way in which Appellees employed false or misleading representations, the FDCPA

claim fails. In addition, the defendants named on this claim do not qualify as "debt

collectors" within the meaning of the FDCPA because they became involved with

Christie's debt before it was in default. See id. § 1692a(6)(F)(iii).

       4. The district court properly dismissed Christie's Unfair Competition Law

claim. See Cal. Bus. & Prof. Code § 17200 (prohibiting unlawful, unfair, or

fraudulent business practices). Christie bases her theory of "unlawful" conduct on

the Appellees' alleged violation of the FDCPA. But as discussed in section 3,

supra, that argument fails. Nor can she support her Unfair Competition Law claim

on the "unfair" or "fraudulent" prongs of the statute. Christie's allegations of

"unfair" or "fraudulent" business practices derive from the allegation that

Appellees did not have the legal authority to demand loan payments. But as

discussed in section 1, supra, Christie's challenges to Appellees' authority to

collect her debt fail.


                                           6
      5. The district court properly dismissed Christie's claim for cancellation of a

written instrument.3 See Cal. Civil Code § 3412 ("A written instrument, in respect

to which there is a reasonable apprehension that if left outstanding it may cause

serious injury to a person against whom it is void or voidable, may, upon his

application, be so adjudged, and ordered to be delivered up or canceled."). Her

voidness argument derives from challenges to the assignment of her loan which, as

discussed in section 1, supra, cannot succeed.

      AFFIRMED.




      3
        On appeal, Christie embraces the notion that her Motion to Cancel the
Assignment of the Deed of Trust and her cause of action for cancellation of a
written instrument rise or fall together. Consequently, the Motion was properly
denied.

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