                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 15 2015

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

VU NGUYEN, an individual,                        No. 13-55737

              Plaintiff - Appellant,             D.C. No. 5:12-cv-00098-GW-DTB

  v.
                                                 MEMORANDUM*
AURORA LOAN SERVICES, LLC,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                             Submitted June 2, 2015**
                               Pasadena, California

Before: M. SMITH and N.R. SMITH, Circuit Judges and LAMBERTH,*** Senior
District Judge.




        *
             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).
        ***
             The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
      Vu Nguyen appeals the district court’s grant of summary judgment in favor

of Aurora Loan Services, LLC, in Nguyen’s diversity action, alleging negligence,

wrongful foreclosure, and other causes of action arising from the non-judicial

foreclosure of Nguyen’s property. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

1.    The district court properly granted summary judgment to Aurora on

Nguyen’s breach of the covenant of good faith and fair dealing claim. Nguyen

argued Aurora breached the covenant of good faith and fair dealing by failing to

“work with him” to modify his loan after the expiration of the Workout

Agreement. However, Nguyen failed to identify any express contract term

obligating Aurora to offer him another loan modification at the expiration of the

Workout Agreement. Although the Workout Agreement stated that, at its

conclusion, Aurora may offer Nguyen another loan workout option, it did not

obligate Aurora to do so. See Racine & Laramie, Ltd. v. Dep’t of Parks &

Recreation, 14 Cal. Rptr. 2d 335, 339 (Ct. App. 1992) (“If there exists a

contractual relationship between the parties, . . . the implied covenant is limited to

assuring compliance with the express terms of the contract, and cannot be extended

to create obligations not contemplated in the contact.”)




                                           2
      Nguyen also failed to plead facts demonstrating that Aurora had an implied

duty to work with him to identify and implement a foreclosure prevention

alternative. Nguyen’s Workout Agreement was a commercial, in-house agreement

offered by Aurora. It was not a forbearance agreement offered pursuant to the

Fannie Mae HomeSaver program or a temporary payment plan (“TPP”) agreement

under the Home Affordable Modification Program (“HAMP”). Lueras v. BAC

Home Loans Servicing, LP, 163 Cal. Rptr. 3d 804, 825-27 (Ct. App. 2013).

Because Nguyen’s Workout Agreement was not offered as part of any federal loss

mitigation program, Aurora had no implied duty to comply with the HAMP United

States Treasury directives. See id.

2.    The district court did not err in dismissing Nguyen’s breach of contract and

promissory estoppel claims. First, Nguyen cannot plead a plausible breach of

contract claim, because it was Nguyen (not Aurora) who breached the Workout

Agreement by failing to make timely payments. Second, Nguyen fails to plead

facts demonstrating a clear and unambiguous promise by Aurora to offer Nguyen a

loan modification that would prevent foreclosure. See US Ecology, Inc. v. State, 28

Cal. Rptr. 3d 894, 905 (Ct. App. 2005) (citing Laks v. Coast Fed. Sav. & Loan

Ass’n., 131 Cal. Rptr. 836, 839 (Ct. App. 1976)).




                                         3
3.     The district court did not err in entering summary judgment on Nguyen’s

claim for a violation of 15 U.S.C. § 1639f. Nguyen’s claim fails as a matter of law,

because the statute did not go into effect until January 21, 2013, after Aurora’s

alleged wrongful acts. See Mortgage Reform and Anti-Predatory Lending Act,

Pub. L. No. 111-203, 124 Stat. 2136 (2010). No party suggested the statute

applied retroactively.

4.     Nguyen failed to plead a plausible cause of action for a violation of the

California Business and Professions Code § 17200 (“UCL”). First, Nguyen failed

to plead facts demonstrating that Aurora unfairly or deceptively placed his

payments into a suspense account. Rather, pursuant to the Workout Agreement,

Nguyen specifically and expressly authorized Aurora to hold his partial payments

in a suspense account. Additionally, there is no evidence in the record

demonstrating that any late fees were the result of Aurora’s alleged misapplication

of his payments rather than Nguyen’s own failure to timely pay the loan amounts

due.

       Second, Nguyen’s UCL violation claims, based on the alleged use of robo-

signers and the unfair or deceptive use of the Mortgage Electronic Registration

Systems, Inc. (“MERS”) fail, because Nguyen did not have standing to contest the

alleged fraudulent transfer of his deed of trust. See Fontenot v. Wells Fargo Bank,


                                          4
N.A., 129 Cal. Rptr. 3d 467, 481 (Ct. App. 2011) (explaining that even “if MERS

lacked authority to transfer the note, it [was] difficult to conceive how plaintiff was

prejudiced by [the alleged defective assignment] . . . [b]ecause a promissory note is

a negotiable instrument [and] a borrower must anticipate it can and might be

transferred to another creditor . . . without changing [plaintiff’s] obligations under

the note”); Herrera v. Fed. Nat. Mortg. Ass’n, 141 Cal. Rptr. 3d 326, 333 (Ct. App.

2012) (reiterating that California’s foreclosure statutes authorizing a “trustee,

mortgagee, or beneficiary, or an agent of any of them [to] initiate foreclosure, [do]

not include a requirement that an agent demonstrate authorization by its

principal”).

5.    The district court properly declined to grant Nguyen’s request to amend his

complaint for a third time. Nguyen did not demonstrate how he would cure the

defects if leave were granted. See Lipton v. Pathogenesis Corp., 284 F.3d 1027,

1039 (9th Cir.2002).

      AFFIRMED.




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