                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 26 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LOUIS J. JEAN-LOUIS, Private Attorney            No.   14-57006
General,
                                                 D.C. No.
              Plaintiff-Appellant,               5:14-cv-00199-AB-JCG

 v.
                                                 MEMORANDUM*
J.P. MORGAN CHASE BANK, N.A.; et
al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    Andre Birotte, Jr., District Judge, Presiding

                      Argued and Submitted January 11, 2017
                               Pasadena, California

Before: KOZINSKI and WATFORD, Circuit Judges, and BENNETT,** District
Judge.

      1. The district court did not abuse its discretion by denying Louis Jean-

Louis’s motion under Federal Rule of Civil Procedure 60(b) for relief from the

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
                                                                            Page 2 of 4
district court’s April 24, 2014, dismissal order. The district court did not explicitly

reference the four factors in Bateman v. United States Postal Service, 231 F.3d

1220, 1223–24 (9th Cir. 2000), but its order reflects consideration of each of them.

Specifically, the district court found that granting relief would prejudice the

defendants by requiring them to re-file a nearly identical motion to dismiss (factor

one), which would needlessly prolong the proceedings (factor two). The district

court also found that Jean-Louis’s stated reason for the delay—that he had not been

served with the court’s order—was not credible (factor three), and that Jean-Louis

was not acting in good faith by virtue of his apparent reliance on the undisclosed

assistance of an attorney (factor four). Jean-Louis fails to identify any authority

compelling a contrary conclusion as to any of these factors.

       2. The district court properly dismissed claims 1–4, 6, and 8–9. Each of

these claims is predicated on alleged contractual breaches that Jean-Louis lacks

standing to litigate.

       Jean-Louis lacks standing to assert claims seeking to invalidate his mortgage

note and deed of trust based on the allegation that their assignment to a mortgage-

backed security trust violated the terms of the applicable pooling and servicing

agreement (PSA). California courts have repeatedly held that borrowers lack

standing to challenge the validity of a mortgage assignment based on alleged
                                                                            Page 3 of 4
violations of the PSA. See Saterbak v. JPMorgan Chase Bank, N.A., 245 Cal. App.

4th 808, 814–15 (Ct. App. 2016); Jenkins v. JP Morgan Chase Bank, N.A., 216

Cal. App. 4th 497, 512–15 (Ct. App. 2013).

       For the same reason, Jean-Louis lacks standing to assert claims predicated

on the allegation that the defendants lack the right to service his loan or foreclose

on his property. These claims, too, rest on Jean-Louis’s contention that the

assignment of his mortgage note and deed of trust violated the terms of the

applicable PSA. In order to prevail on these claims, Jean-Louis would again need

to prove that the terms of the PSA had been violated, a matter that he lacks

standing to litigate.

       Yvanova v. New Century Mortgage Corporation, 62 Cal. 4th 919 (2016),

does not compel a contrary conclusion in this case. There, the California Supreme

Court limited its “narrow” holding to borrowers who have “suffered a nonjudicial

foreclosure,” and the court expressly stated that its holding should not be construed

to reach borrowers “attempt[ing] to preempt a threatened nonjudicial foreclosure.”

Id. at 924. According to the complaint, Jean-Louis’s property has not been subject

to a nonjudicial foreclosure. For this reason, Yvanova is not applicable here.

       Jean-Louis also lacks standing to assert claims based on allegations that the

defendants violated the consent order entered in United States of America v. Select
                                                                           Page 4 of 4
Portfolio Servicing, Inc., No. 03-12219-DPW (D. Mass. Sept. 4, 2007). Under

California law, a third-party beneficiary may enforce a contract if it is expressly

made for his benefit. Sessions Payroll Management, Inc. v. Noble Construction

Co., 84 Cal. App. 4th 671, 680 (Ct. App. 2000). The consent order in the Select

Portfolio Servicing case was not made expressly for Jean-Louis’s benefit, and he

therefore lacks standing to enforce it.

      3. The district court properly dismissed claim 5, the only remaining claim at

issue in this appeal. That claim is predicated on Jean-Louis’s allegation that the

defendants owe him a fiduciary duty because they held themselves out to be his

lenders and mortgage servicers. Under California law, however, the relationship

between a lending institution and its borrowers is not fiduciary in nature. Nymark

v. Heart Federal Savings & Loan Association, 231 Cal. App. 3d 1089, 1093 n.1

(Ct. App. 1991). Because Jean-Louis has not plausibly alleged that the defendants

owe him a fiduciary duty, his accounting claim fails as a matter of law.

      AFFIRMED.

      Jean-Louis’s motion for judicial notice is GRANTED.
