                                                           FILED
 1                       NOT FOR PUBLICATION                NOV 24 2014
                                                        SUSAN M. SPRAUL, CLERK
 2                                                        U.S. BKCY. APP. PANEL
                                                          OF THE NINTH CIRCUIT
 3                UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                          OF THE NINTH CIRCUIT
 5   In re:                         )   BAP No.      NC-13-1615-KuPaJu
                                    )
 6   ANTON ANDREW RIVERA and DENISE )   Bk. No.      14-54193*
     ANN RIVERA,                    )
 7                                  )   Adv. No.     14-05108
                    Debtors.        )
 8   _______________________________)
                                    )
 9   ANTON ANDREW RIVERA; DENISE    )
     ANN RIVERA,                    )
10                                  )
                    Appellants,     )
11                                  )
     v.                             )   MEMORANDUM**
12                                  )
     DEUTSCHE BANK NATIONAL TRUST   )
13   COMPANY, Trustee of Certificate)
     Holders of the WAMU Mortgage   )
14   Pass Through Certificate       )
     Series 2005-AR6,               )
15                                  )
                    Appellee.       )
16   _______________________________)
17                Argued and Submitted on October 23, 2014
                        at San Francisco, California
18
                         Filed – November 24, 2014
19
               Appeal from the United States Bankruptcy Court
20                 for the Northern District of California
21       Honorable M. Elaine Hammond, Bankruptcy Judge, Presiding
22
          *
23         The bankruptcy case and adversary proceeding were
     originally pending in the Oakland Division of the United States
24   Bankruptcy Court for the Northern District of California as
     bankruptcy case no. 12-49703 and adversary proceeding
25   no. 13-04008. On October 15, 2014, the bankruptcy case and
26   adversary proceeding were transferred to the San Jose Division
     and assigned new case numbers.
27        **
           This disposition is not appropriate for publication.
28   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
     See 9th Cir. BAP Rule 8013-1.
 1
 2   Appearances:    Ronald H. Freshman argued for appellants; Stefan
                     Perovich of Keesal, Young & Logan argued for
 3                   appellee.
 4
     Before: KURTZ, PAPPAS and JURY, Bankruptcy Judges.
 5
 6                              INTRODUCTION
 7        Chapter 131 debtors Anton and Denise Rivera appeal from an
 8   order dismissing their second amended complaint without leave to
 9   amend and dismissing their adversary proceeding with prejudice.
10        We have conducted a de novo review of the Riveras’ second
11   amended complaint against defendant Deutsche Bank National Trust
12   Company, Trustee of Certificate-Holders of the WAMU Mortgage Pass
13   Through Certificate Series 2005-AR6 (“DBNTC”).    Based on our de
14   novo review, we conclude that some of the Riveras’ claims for
15   relief contain sufficient factual allegations to state a
16   plausible entitlement to recovery under a cognizable legal
17   theory.   Some of their claims do not.    Accordingly, we AFFIRM IN
18   PART, REVERSE IN PART, and REMAND for further proceedings.
19                                  FACTS
20        The Riveras’ second amended complaint contained five causes
21   of action, as follows: (1) to determine the extent and validity
22   of DBNTC’s lien; (2) for cancellation of written instruments;
23   (3) for slander of title; (4) for violation of California’s
24   Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.;
25
          1
26         Unless specified otherwise, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
27   all "Rule" references are to the Federal Rules of Bankruptcy
     Procedure, Rules 1001-9037. All "Civil Rule" references are to
28   the Federal Rules of Civil Procedure.

                                      2
 1   and (5) for violation of the Federal Truth In Lending Act.,
 2   15 U.S.C. § 1641(g).2
 3        According to the Riveras’ second amended complaint, in 2004,
 4   they refinanced their real property located in Bethel Island,
 5   California, by obtaining a $440,000 loan from Washington Mutual
 6   Bank.    In 2008, the Office of Thrift Supervision shut down
 7   Washington Mutual and appointed the FDIC as receiver for
 8   Washington Mutual.    The FDIC as receiver for Washington Mutual
 9   then entered into a purchase and assumption agreement with
10   JP Morgan Chase Bank pursuant to which Chase purchased some of
11   Washington Mutual’s assets and assumed some of its liabilities.
12   In 2012, Chase (as Washington Mutual’s successor in interest)
13   executed a corporate assignment of deed of trust, thereby
14   purporting to assign to DBNTC the deed of trust securing the
15   Riveras’ $440,000 loan.
16        Chase and DBNTC jointly filed a proof of claim in the
17   Riveras’ bankruptcy case asserting that DBNTC is a secured
18   creditor and the holder of the Riveras’ $440,000 promissory note
19   and that Chase is DBNTC’s servicing agent.    The Riveras filed an
20   objection to that proof of claim asserting that neither DBNTC nor
21   Chase are entitled to enforce the note or to receive the payments
22   owed under the note and hence lack standing to file the proof of
23   claim.
24
25        2
           On DBNTC’s motions, the bankruptcy court dismissed with
26   leave to amend both the Riveras’ original complaint and their
     first amended complaint. On appeal, the Riveras have not raised
27   any issues challenging either of these two dismissals, so our
     review will be limited to the dismissal with prejudice of their
28   second amended complaint.

                                       3
 1        The Riveras’ second amended complaint refers to and attaches
 2   as an exhibit a copy of the deed of trust the Riveras signed in
 3   order to secure the $440,000 loan.   In turn, the deed of trust
 4   refers to the promissory note the Riveras signed in exchange for
 5   the $440,000 loan.   A copy of the note is not attached to the
 6   second amended complaint, but it is referenced in the complaint
 7   at paragraphs 52-53.   Paragraphs 50-53 focus on the proof of
 8   claim DBNTC and Chase filed in the Riveras’ bankruptcy case.     The
 9   Riveras do not dispute that the copy of the note attached to the
10   proof of claim is a copy of the note they signed, but they do
11   challenge the authenticity, reliability and validity of the
12   endorsement stamped on the last page of the note – an undated
13   endorsement in blank purportedly signed by Leta Hutchinson as
14   Assistant Vice President for Washington Mutual Bank.
15        The Riveras allege that the endorsement on the note is
16   suspect for two reasons.   First, they allege that, in an SEC
17   filing disclosing information about the mortgage securitization
18   trust for which DBNTC is trustee, the filing states that the
19   mortgage notes pooled into the trust would not be endorsed and
20   negotiated to the trust.   And second, the Riveras allege that,
21   after the FDIC’s 2008 asset sale to Chase, Leta Hutchinson became
22   an officer of Chase.   The Riveras in essence infer from the
23   above-referenced allegations that the Hutchinson endorsement is a
24   sham: (1) that Hutchinson did not actually endorse the Riveras’
25   note until 2012 – around the time Chase executed the assignment
26   of the deed of trust; and (2) that, in 2012, Hutchinson no longer
27   was an officer of the shut down Washington Mutual Bank and hence
28   no longer had any authority to endorse the note on behalf of

                                      4
 1   Washington Mutual.
 2        According to the Riveras, there were fatal problems not only
 3   with the endorsement of the note, but also with the transfer of
 4   Washington Mutual’s rights in the loan and the security.   The
 5   Riveras’ second amended complaint pled alternate theories.    In
 6   the first theory, the Riveras alleged that Chase’s purported
 7   transfer of the security to the trust – by way of the 2012
 8   corporate assignment of deed of trust – was void because Chase’s
 9   purported 2012 assignment occurred seven years after the trust
10   pool was supposed to close, as specified in the pooling and
11   servicing agreement governing the securitization trust.    Relying
12   on Glaski v. Bank of Am., N.A., 218 Cal.App.4th 1079, 1083
13   (2013), the Riveras reason that Chase’s attempted assignment was
14   void because the assignment violated the trust’s terms.
15        In the second theory, the Riveras allege that Chase could
16   not convey to DBNTC any interest in the loan or the security
17   because Chase never acquired from Washington Mutual any interest
18   in the loan or security.   The Riveras have offered two potential
19   explanations for this theory.   First, they posit that the FDIC’s
20   2008 asset sale to Chase did not include Washington Mutual’s
21   rights with respect to the Rivera loan and security.   And second,
22   they posit that, because the note never was properly negotiated
23   or otherwise properly transferred to Chase, neither Chase nor
24   DBNTC ever acquired any valid right in the loan or the security.3
25
          3
26         The Riveras admit in their opening appeal brief that their
     legal argument – the one regarding the assignment of the security
27   being a nullity without a valid assignment of the underlying debt
     – is new. See Aplt. Opn. Br. at pp. 16-17. Ordinarily, we will
28                                                      (continued...)

                                      5
 1        In short, the Riveras’ second amended complaint disputes
 2   every link in the chain of title through which DBNTC claims to
 3   have acquired the right to enforce the Riveras’ note and deed of
 4   trust.     The Riveras contend that neither Washington Mutual nor
 5   the FDIC as the receiver for Washington Mutual ever conveyed any
 6   valid interest in these rights to Chase or DBNTC and that Chase
 7   never conveyed any valid interest in these rights to DBNTC.
 8        The Riveras filed their chapter 13 bankruptcy case in
 9   December 2012.     Within weeks, they commenced their adversary
10   proceeding against DBNTC seeking declaratory relief and to
11   determine the extent and validity of DBNTC’s claimed lien against
12   their property.     The Riveras’ complaint also sought, among other
13   things, damages based upon DBNTC’s alleged recordation of “false
14   documents” and damages based on DBNTC’s alleged violation of
15   15 U.S.C. § 1641(g) (“TILA Claim”).
16            After the bankruptcy court twice dismissed the Riveras’
17   complaint with leave to amend, and after the Riveras twice
18   amended their complaint, the court heard DBNTC’s motion to
19   dismiss the Riveras’ second amended complaint.     The court ruled
20   at the hearing that the second amended complaint did not state a
21
22        3
           (...continued)
23   not consider issues raised for the first time on appeal. Scovis
     v. Henrichsen (In re Scovis), 249 F.3d 975, 984 (9th Cir. 2001).
24   However, we have discretion to do so when: “the issue is purely
     one of law, does not affect or rely upon the factual record
25   developed by the parties, and will not prejudice the party
26   against whom it is raised.” Dream Palace v. Cnty. of Maricopa,
     384 F.3d 990, 1005 (9th Cir. 2003). Here, we will exercise our
27   discretion to consider the Riveras’ additional argument. Because
     this is an appeal from a Civil Rule 12(b)(6) dismissal, the
28   parties have not yet developed any factual record.

                                        6
 1   valid claim for relief.   In so ruling, the court acknowledged
 2   that the second amended complaint sought to challenge DBNTC’s
 3   claim that it is the holder of the Riveras’ note and was entitled
 4   to enforce the note.   But the court held that California law did
 5   not require DBNTC to establish its status as holder of the note
 6   or as a person entitled to enforce the note in order to conduct a
 7   nonjudicial foreclosure of the property, citing Gomes v.
 8   Countrywide Home Loans, Inc., 192 Cal.App.4th 1149 (2011).    The
 9   court further held that the Riveras lacked standing to challenge
10   the validity of the assignment between Chase and DBNTC because
11   the Riveras were not a party to that assignment, citing Dick v.
12   Am. Home Mortg. Servicing, Inc., 2013 WL 5299180 (E.D. Cal.
13   2013).   Finally, the court held that the Riveras had not alleged,
14   as required, that any defects in the foreclosure process had
15   prejudiced the Riveras by interfering with their ability to make
16   payments owed on the loan, or that the original lender would not
17   have initiated foreclosure proceedings, citing Fontenot v. Wells
18   Fargo Bank, N.A., 198 Cal.App.4th 256 (2011).
19        Based on these holdings, the bankruptcy court determined
20   that the Riveras’ first through fourth claims for relief all
21   should be dismissed because these claims all hinged on the
22   Riveras’ defective challenge to DBNTC’s disputed status as the
23   holder of the note or the person entitled to enforce the note.
24   As for the Riveras’ fifth claim – their TILA claim – it is not
25   entirely clear why the court ruled that this claim should be
26   dismissed.   In spite of the Riveras’ allegations that they never
27   received notice of the purported change in owners of their home
28   loan as required under 15 U.S.C. § 1641(g), the court appears to

                                      7
 1   have concluded that the Riveras had sufficient actual knowledge
 2   of the change in ownership, as reflected in the Riveras’ court
 3   filings, so that they were not entitled to any recovery on
 4   account of 15 U.S.C. § 1641(g).
 5        Finally, because the Riveras already had been given three
 6   prior opportunities to file their complaint against DBNTC and had
 7   not yet been able to state a viable claim for relief, the court
 8   ruled that the complaint would be dismissed without leave to
 9   amend and that the entire adversary proceeding would be dismissed
10   with prejudice.
11        The bankruptcy court entered its final dismissal order on
12   December 10, 2013, and the Riveras timely filed their notice of
13   appeal on December 23, 2013.
14                               JURISDICTION
15        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
16   §§ 1334 and 157(b)(2)(A), (K) and (O).     We have jurisdiction
17   under 28 U.S.C. § 158.
18                                   ISSUE
19        Did the bankruptcy court err when it dismissed the claims
20   for relief stated in the Riveras’ second amended complaint?
21                            STANDARDS OF REVIEW
22        We review de novo the bankruptcy court's Civil Rule 12(b)(6)
23   dismissal.   Barnes v. Belice (In re Belice), 461 B.R. 564, 572
24   (9th Cir. BAP 2011).
25      CIVIL RULE 12(b)(6) STANDARDS AND JUDICIAL NOTICE STANDARDS
26        When we review a matter de novo, we consider the matter anew
27   as if the bankruptcy court had not previously ruled.     Sachan v.
28   Huh (In re Huh), 506 B.R. 257, 262 (9th Cir. BAP 2014) (en banc).

                                       8
 1   Therefore, we apply the same standards to Civil Rule 12(b)(6)
 2   dismissal motions that all other federal courts are required to
 3   apply.   In re Belice, 461 B.R. at 572-73.
 4        Under Civil Rule 12(b)(6), made applicable in adversary
 5   proceedings by Rule 7012, a complaint may be dismissed for
 6   “failure to state a claim upon which relief can be granted.”
 7   To survive a Civil Rule 12(b)(6) dismissal motion, a complaint
 8   must present cognizable legal theories and sufficient factual
 9   allegations to support those theories.   See Johnson v. Riverside
10   Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008).     As
11   the Supreme Court has explained:
12        a complaint must contain sufficient factual matter,
          accepted as true, to state a claim to relief that is
13        plausible on its face. . . . A claim has facial
          plausibility when the plaintiff pleads factual content
14        that allows the court to draw the reasonable inference
          that the defendant is liable for the misconduct
15        alleged. . . . Threadbare recitals of the elements of
          a cause of action, supported by mere conclusory
16        statements, do not suffice.
17   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and
18   internal quotation marks omitted).
19        In reviewing the sufficiency of a complaint under Civil
20   Rule 12(b)(6), we must accept as true all facts alleged in the
21   complaint and draw all reasonable inferences in favor of the
22   plaintiff.   See Newcal Indus., Inc. v. Ikon Office Solutions,
23   513 F.3d 1038, 1043 n.2 (9th Cir. 2008).     However, we do not need
24   to accept as true conclusory allegations or legal
25   characterizations cast in the form of factual allegations.    See
26   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
27        We may use judicially noticed facts to establish that a
28   complaint does not state a claim for relief.    Skilstaf, Inc. v.

                                        9
 1   CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012).     We
 2   can take judicial notice of the existence, filing and content of
 3   documents in the Riveras’ underlying bankruptcy case.    See
 4   O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d
 5   955, 957–58 (9th Cir. 1989).
 6        We also may consider the existence and content of documents
 7   attached to and referenced in the complaint as exhibits.    Lee v.
 8   City of L.A., 250 F.3d 668, 688 (9th Cir. 2001); Durning v. First
 9   Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).    Even when a
10   document is not physically attached to the complaint, we may
11   consider its existence and contents when its authenticity is not
12   contested and when it necessarily is relied upon by the
13   plaintiffs in their complaint.   See United States v. Ritchie,
14   342 F.3d 903, 907–08 (9th Cir. 2003); Lee, 250 F.3d at 688.
15        Of course, just because a document states a “fact” does not
16   necessarily mean that this fact is true.    Roth v. Jennings,
17   489 F.3d 499, 509 (2d Cir. 2007).     Whether the facts stated in a
18   judicially noticed document are reasonably subject to dispute
19   depends on the nature of the facts stated and the nature and
20   purpose of the document as a whole.    See Ferguson v. Wells Fargo
21   Bank, N.A., 2013 WL 504709, at **2-3 (E.D. Cal. 2013); see also
22   Lee, 250 F.3d at 690.
23                               DISCUSSION
24        Citing Gomes and Dick, the bankruptcy court held that the
25   Riveras had no right to dispute that DBNTC was the person
26   entitled to enforce the note and no right to challenge the
27   validity of the assignment of the deed of trust from Chase to
28   DBNTC.   We disagree with the bankruptcy court on both points.

                                      10
 1        Gomes was a state court lawsuit in which the plaintiff was
 2   alleging that the agent who had initiated nonjudicial foreclosure
 3   proceedings on behalf of the noteholder had not been authorized
 4   by the noteholder to initiate those proceedings.    Gomes,
 5   192 Cal.App.4th at 1152.    In order to protect California’s
 6   comprehensive scheme of laws governing nonjudicial foreclosures,
 7   Gomes held that there is no cognizable legal theory that enables
 8   a borrower to obtain a pre-foreclosure judicial determination as
 9   to whether the noteholder’s nominee or agent actually had been
10   authorized by the noteholder to initiate the foreclosure
11   proceedings.   Gomes, 192 Cal.App.4th at 1155-57.
12        Thus, the holding in Gomes is not quite as expansive as the
13   bankruptcy court here treated it.     This Panel recently examined
14   Gomes and was careful to articulate Gomes’s narrow holding:
15        [A]s a California court recently held, Cal.Civ.Code
          § 2924 “does not provide for a judicial action” when
16        the issue is not whether the wrong entity initiated
          foreclosure but whether the entity was merely
17        authorized to do so by the owner of the note.
18   Cedano v. Aurora Loan Servs., LLC (In re Cedano), 470 B.R. 522,
19   531 (9th Cir. BAP 2012) (emphasis added) (citing Gomes,
20   192 Cal.App.4th at 1155).
21        Meanwhile, in Dick, after a nonjudicial foreclosure had been
22   completed, the debtor-borrower commenced an adversary proceeding
23   for wrongful foreclosure, alleging that an assignment of the deed
24   of trust from the lender to the trustee of a securitization trust
25   was void because the assignment violated the trust’s terms, as
26   specified in the pooling and servicing agreement governing the
27   trust.   See Dick, 2013 WL 5299180, at *1-2.   The bankruptcy court
28   here construed Dick as holding that a debtor-borrower lacks

                                      11
 1   standing to challenge the validity of an assignment of the deed
 2   of trust for purposes of asserting that the foreclosure
 3   proceedings were unauthorized.    We acknowledge that the literal
 4   language of Dick arguably might support the bankruptcy court’s
 5   construction.   See Id.   Nonetheless, when one reads Dick’s
 6   literal language in context and looks at the cases that Dick
 7   cites, Dick only provides support for a more limited proposition:
 8   that the debtor-borrower cannot attack the assignment of a deed
 9   of trust to the trustee of a securitization trust based on the
10   terms of a pooling and servicing agreement governing that trust
11   because the debtor-borrower is not a party to the pooling and
12   servicing agreement.   Id.   Furthermore, Dick acknowledged that
13   there was a split of authority on this issue and ultimately
14   declined to resolve the appeal based on this issue.     Id. at *2-3.
15   Instead, the court resolved the appeal based on the borrowers’
16   failure to allege harm or prejudice.    Id.
17        On a more fundamental level, Gomes and Dick each involved a
18   direct attack on pending or completed nonjudicial foreclosure
19   proceedings, and each can best be understood as part of a series
20   of decisions protecting the comprehensive scheme of laws enacted
21   by the California legislature to regulate nonjudicial
22   foreclosures and aiming to keep such foreclosures relatively
23   inexpensive, expeditious and out of court.     See Debrunner v.
24   Deutsche Bank Nat’l Trust Co., 204 Cal.App.4th 433, 442 (2012).
25        In contrast, the Riveras’ second amended complaint arises in
26   a markedly different procedural context.      While some aspects of
27   the second amended complaint might be construed as a direct
28   attack on the foreclosure proceedings initiated against the

                                      12
 1   Riveras’ property, other aspects addressed DBNTC’s proof of claim
 2   and its assertions therein that it held a secured claim and was
 3   entitled to enforce the note.   See, e.g., second amended
 4   complaint at ¶¶ 50-53.
 5        It is clear from the bankruptcy court’s comments at the
 6   hearing on the motion to dismiss the second amended complaint
 7   that the court understood the Riveras were alleging that DBNTC is
 8   not the holder of the note and is not a person entitled to
 9   enforce the note.   Furthermore, we have no doubt that the
10   bankruptcy court considered DBNTC’s proof of claim to be at issue
11   in the adversary proceeding, at least in terms of whether DBNTC
12   was the person entitled to enforce the note and whether DBNTC
13   had standing to file the proof of claim against the Riveras.4
14
          4
15         If we had any doubt that the bankruptcy court intended its
     rulings in the adversary proceeding to resolve these questions,
16   that doubt would be dispelled by the court’s comments at a
     subsequent hearing in the Riveras’ bankruptcy case. At the
17   March 20, 2014 hearing on the Riveras’ objection to DBNTC’s proof
     of claim, the court explicitly stated that its ruling disposing
18   of the Riveras’ adversary proceeding also disposed of the
19   question regarding DBNTC’s standing to file the proof of claim:
     “The issues as to authority to enforce the note were brought
20   forth in the adversary proceeding which I have ruled on and that
     I understand is on appeal, so those are being litigated in that
21   area and so [in these claim objection proceedings] we are looking
     strictly at the amount of the claim on the objection to claim.”
22
     Audio File of hearing (March 20, 2014) (attached to Bk. Dkt.
23   No. 12-49703 as Doc. No. 102). We may consider the court’s
     comments at the March 20, 2014 hearing to the extent they
24   constitute the court’s interpretation of its own rulings. See
     generally Rosales v. Wallace (In re Wallace), 490 B.R. 898, 906
25   (9th Cir. BAP 2013) (holding that we give significant deference
26   to the bankruptcy court’s interpretation of its own order).

27        At oral argument in this appeal, both the Riveras and DBNTC
     argued that DBNTC’s proof of claim was not at issue in the
28                                                      (continued...)

                                     13
 1        This Panel previously has held that a debtor may object on
 2   standing grounds to a proof of claim based on a note secured by a
 3   deed of trust and that, unless the creditor establishes that it
 4   is a person entitled to enforce the note (or an agent of such a
 5   person), the claim objection should be sustained.       See Veal v.
 6   Am. Home Mortg. Servicing, Inc. (In re Veal), 450 B.R. 897,
 7   919-21 (9th Cir. BAP 2011).       As stated in In re Veal:
 8        When debtors such as the Veals challenge an alleged
          servicer's standing to file a proof of claim regarding
 9        a note governed by Article 3 of the UCC, that servicer
          must show it has an agency relationship with a “person
10        entitled to enforce” the note that is the basis of the
          claim. If it does not, then the servicer has not shown
11        that it has standing to file the proof of claim.
12        *   *   *
13        As stated before, AHMSI presented no evidence as to who
          possessed the original Note. It also presented no
14        evidence showing indorsement of the note either in its
          favor or in favor of Wells Fargo, for whom AHMSI
15        allegedly was servicing the Veal Loan. Without
          establishing these elements, AHMSI cannot establish
16        that it is a "person entitled to enforce" the Note.
          The Veals would thus have a valid claim objection under
17        § 502(b)(1).
18   Id. at 920, 21.
19        Here, it is unnecessary for us to decide for purposes of
20   this appeal whether the Riveras’ note is a negotiable instrument
21   within the meaning of Cal. Com’l Code § 3104 and thus subject to
22   California’s Uniform Commercial Code provisions governing
23   negotiable instruments, as specified in Cal. Com’l Code
24   § 3102(a).       Even if the Riveras’ note does not qualify as a
25
26        4
           (...continued)
27   adversary proceeding, but the parties’ arguments on this point
     are contrary to the bankruptcy court’s explicitly stated intent
28   regarding the scope of its rulings in the adversary proceeding.

                                         14
 1   negotiable instrument covered by the Uniform Commercial Code, for
 2   purposes of establishing DBNTC’s standing to file its proof of
 3   claim and to overcome the Riveras’ objection to that claim, DBNTC
 4   still would need to establish that the payment rights evidenced
 5   by the note had been assigned or negotiated to it.   As a matter
 6   of general California contract law, an entity seeking to enforce
 7   contract rights as an alleged assignee of those rights ordinarily
 8   must show that the rights actually were assigned to it.   See
 9   Heritage Pac. Fin., LLC v. Monroy, 215 Cal. App. 4th 972, 988-89
10   (2013); Fontenot, 198 Cal.App.4th at 270.5   Without such proof,
11   as In re Veal generally teaches, DBNTC’s failure to establish its
12   standing would be fatal to its proof of claim.   See In re Veal,
13   450 B.R. at 919.
14        With respect to the Riveras’ challenge to DBNTC’s assertion
15   of secured status, there is a similar dichotomy between the
16   Riveras’ rights for purposes of a nonjudicial foreclosure and
17   their rights for purposes of DBNTC’s assertion of secured status
18   in its proof of claim.   California law indicates that, for
19   purposes of a non-judicial foreclosure, a party may foreclose
20   based solely on its status as an assignee of the lender’s rights
21   under the deed of trust without regard to who holds the
22   borrower’s note.   See Siliga v. Mortg. Electr. Registration Sys.,
23   Inc., 219 Cal.App.4th 75, 84 n.5 (2013); Jenkins v. JP Morgan
24   Chase Bank, N.A., 216 Cal.App.4th 497, 512-13 (2013); Debrunner,
25
          5
26         For an overview of the different ways under California law
     a lender might convey its payment rights to another outside the
27   Uniform Commercial Code provisions governing negotiable
     instruments, see 4 Harry D. Miller & Marvin B. Starr, CAL. REAL
28   EST. § 10:43 (3d ed. 2014).

                                     15
 1   204 Cal.App.4th at 440-42.    But outside of the nonjudicial
 2   foreclosure context, an attempted assignment of a mortgage or
 3   trust deed without an assignment of the underlying debt is a
 4   nullity.    Kelley v. Upshaw, 39 Cal. 2d 179, 192 (1952); Wolfe v.
 5   Leisure Time Sports, Inc. (In re Leisure Time Sports, Inc.),
 6   194 B.R. 859, 861 (9th Cir.BAP 1996) (citing Union Supply Co. v.
 7   Morris, 220 Cal. 331, 338–39, 30 P.2d 394, 397 (1934)); see also
 8   Carpenter v. Longan, 83 U.S. 271, 275 (1872) (“An assignment of
 9   the note carries the mortgage with it, while an assignment of the
10   latter alone is a nullity.”).
11          Even though Siliga, Jenkins and Debrunner may preclude the
12   Riveras from attacking DBNTC’s foreclosure proceedings by arguing
13   that Chase’s assignment of the deed of trust was a nullity in
14   light of the absence of a valid transfer of the underlying debt,
15   we know of no law precluding the Riveras from challenging DBNTC’s
16   assertion of secured status for purposes of the Riveras’
17   bankruptcy case.    Nor did the bankruptcy court cite to any such
18   law.
19          We acknowledge that our analysis promotes the existence of
20   two different sets of legal standards – one applicable in
21   nonjudicial foreclosure proceedings and a markedly different one
22   for use in ascertaining creditors’ rights in bankruptcy cases.
23   But we did not create these divergent standards.    The California
24   legislature and the California courts did.    We are not the first
25   to point out the divergence of these standards.    See CAL. REAL
26   EST., at § 10:41 (noting that the requirements under California
27   law for an effective assignment of a real-estate-secured
28   obligation may differ depending on whether or not the dispute

                                      16
 1   over the assignment arises in a challenge to nonjudicial
 2   foreclosure proceedings).
 3        We must accept the truth of the Riveras’ well-pled
 4   allegations indicating that the Hutchinson endorsement on the
 5   note was a sham and, more generally, that neither DBNTC nor Chase
 6   ever obtained any valid interest in the Riveras’ note or the loan
 7   repayment rights evidenced by that note.   We also must
 8   acknowledge that at least part of the Riveras’ adversary
 9   proceeding was devoted to challenging DBNTC’s standing to file
10   its proof of claim and to challenging DBNTC’s assertion of
11   secured status for purposes of the Riveras’ bankruptcy case.    As
12   a result of these allegations and acknowledgments, we cannot
13   reconcile our legal analysis, set forth above, with the
14   bankruptcy court’s rulings on the Riveras’ second amended
15   complaint.   The bankruptcy court did not distinguish between the
16   Riveras’ claims for relief that at least in part implicated the
17   parties’ respective rights in the Riveras’ bankruptcy case from
18   those claims for relief that only implicated the parties’
19   respective rights in DBNTC’s nonjudicial foreclosure proceedings.
20        Given these circumstances, we must separately examine each
21   of the Riveras’ claims for relief to account for this distinction
22   and to determine if there is any alternate basis for concluding
23   that, as a matter of law, a particular claim for relief lacks
24   merit.
25   1.   First Claim for Relief – to Determine the Extent and
26        Validity of Lien
27        Except when the debtor seeks to avoid a lien or other
28   interest in exempt property under § 522(f), all other bankruptcy

                                     17
 1   court actions challenging a creditor’s secured status must be
 2   brought as an adversary proceeding to determine the validity,
 3   priority or extent of the creditor’s lien.    See Rule 7001(2);
 4   Bear v. Coben (In re Golden Plan of Cal., Inc.), 829 F.2d 705,
 5   711–12 (9th Cir. 1986).
 6        Here, the underlying legal basis for the Riveras’ first
 7   claim for relief is state law.   They principally allege that
 8   Chase’s assignment of the deed of trust was void because it
 9   violated the terms of the pooling and servicing agreement
10   governing the securitization trust to which Chase purported to
11   assign the Riveras’ deed of trust.    The Riveras cited Glaski,
12   218 Cal.App.4th at 1094-97, to support their argument.    Glaski
13   held that the assignment of a deed of trust to a securitization
14   trust is void under New York trust law if the assignment violated
15   the trust’s governing pooling and servicing agreement.    Id.   The
16   bankruptcy court here rejected Glaski and instead adopted as
17   persuasive the reasoning of Sandri v. Capital One, N.A.
18   (In re Sandri), 501 B.R. 369 (Bankr. N.D. Cal. 2013), which held
19   that such a violation of the pooling and servicing agreement only
20   would render the deed of trust assignment voidable rather than
21   void and that the borrower lacked standing to raise issues
22   regarding violation of the pooling and servicing agreement
23   because it was not a party to that agreement.    Id. at 375-76.
24   In re Sandri followed the weight of authority among the
25   California appellate courts on this issue.    See, e.g., Jenkins,
26   216 Cal.App.4th at 515.   Moreover, like the bankruptcy court, we
27   find Sandri’s analysis persuasive.
28        When, as here, we must apply state law to resolve an issue,

                                      18
 1   and the state’s highest court has not yet addressed the issue,
 2   our job as a federal court applying state law is to predict how
 3   the state’s highest court would resolve the issue.     Hemmings v.
 4   Tidyman's Inc., 285 F.3d 1174, 1203 (9th Cir. 2002).     Unless we
 5   are convinced that the California Supreme Court would decide the
 6   issue differently, we are obliged to follow the decisions of
 7   California’s intermediate appellate courts.     Vestar Dev. II, LLC
 8   v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001); Spear
 9   v. Wells Fargo Bank, N.A. (In re Bartoni-Corsi Produce, Inc.),
10   130 F.3d 857, 861 (9th Cir. 1997).
11        Here, we note that the California Supreme Court recently
12   granted review from an intermediate appellate court decision
13   following Jenkins and rejecting Glaski.     Yvanova v. New Century
14   Mortg. Corp., 226 Cal.App.4th 495 (2014), review granted &
15   opinion de-published, 331 P.3d 1275 (Cal. Aug 27, 2014).     Thus,
16   we eventually will learn how the California Supreme Court views
17   this issue.   Even so, we are tasked with deciding the case before
18   us, and Ninth Circuit precedent suggests that we should decide
19   the case now, based on our prediction, rather than wait for the
20   California Supreme Court to rule.     See Hemmings, 285 F.3d at
21   1203; Lewis v. Telephone Employees Credit Union, 87 F.3d 1537,
22   1545 (9th Cir. 1996).    Because we have no convincing reason to
23   doubt that the California Supreme Court will follow the weight of
24   authority among California’s intermediate appellate courts, we
25   will follow them as well and hold that the Riveras lack standing
26   to challenge the assignment of their deed of trust based on an
27   alleged violation of a pooling and servicing agreement to which
28   they were not a party.

                                      19
 1        Even though the Riveras’ first claim for relief principally
 2   relies on their allegations regarding the assignment’s violation
 3   of the pooling and servicing agreement, their first claim for
 4   relief also explicitly incorporates their allegations challenging
 5   DBNTC’s proof of claim and disputing the validity of the
 6   Hutchinson endorsement.   Those allegations, when combined with
 7   what is set forth in the first claim for relief, are sufficient
 8   on their face to state a claim that DBNTC does not hold a valid
 9   lien against the Riveras’ property because the underlying debt
10   never was validly transferred to DBNTC.   See In re Leisure Time
11   Sports, Inc., 194 B.R. at 861 (citing Kelly v. Upshaw, 39 Cal.2d
12   179 (1952) and stating that “a purported assignment of a mortgage
13   without an assignment of the debt which it secured was a legal
14   nullity.”).
15        While the Riveras cannot pursue their first claim for relief
16   for purposes of directly challenging DBNTC’s pending nonjudicial
17   foreclosure proceedings, Debrunner, 204 Cal.App.4th at 440-42,
18   the first claim for relief states a cognizable legal theory to
19   the extent it is aimed at determining DBNTC’s rights, if any, as
20   a creditor who has filed a proof of secured claim in the Riveras’
21   bankruptcy case.
22        Consequently, the bankruptcy court erred when it dismissed
23   the Riveras’ first claim for relief.
24   2.   Second Claim for Relief – For Cancellation of Written
25        Instruments
26        The Riveras’ second claim for relief seeks cancellation of
27   Chase’s assignment of the deed of trust, as well as the notice of
28   default and the notice of sale that Chase caused to be recorded

                                     20
 1   on DBNTC’s behalf.
 2         As provided in Cal. Civ. Code § 3412:
 3         A written instrument, in respect to which there is a
           reasonable apprehension that if left outstanding it may
 4         cause serious injury to a person against whom it is
           void or voidable, may, upon his application, be so
 5         adjudged, and ordered to be delivered up or canceled.
 6   Id.; see also In re Cedano, 470 B.R. at 533.   To plead a viable
 7   claim for relief, the Riveras needed to allege that they would be
 8   injured or prejudiced unless these instruments were cancelled.
 9   See Dick, 2013 WL 5299180, at *4.
10         The Riveras’ second claim for relief is based on the same
11   two legal arguments regarding the violation of the pooling and
12   servicing agreement and the absence of a valid transfer of the
13   underlying debt to DBNTC.   As set forth above, the Riveras lack
14   standing to assert violations of the pooling and servicing
15   agreement in support of their claims for relief.   See Jenkins,
16   216 Cal.App.4th at 515; see also In re Sandri, 501 B.R. at 375-
17   76.
18         As for their remaining argument – that the assignment was a
19   nullity because DBNTC did not receive a valid transfer of the
20   underlying debt – the only alleged harm the second amended
21   complaint specifically references (arising from the trust deed
22   assignment, the notice of default and the notice of sale) relates
23   to DBNTC’s pending nonjudicial foreclosure proceedings.   As we
24   already have explained, the alleged absence of noteholder status
25   is not an issue that a borrower can raise to challenge
26   nonjudicial foreclosure proceedings.   Debrunner, 204 Cal.App.4th
27   at 440-42.
28         Even if the California courts generally permitted borrowers

                                     21
 1   to raise noteholder status issues to challenge nonjudicial
 2   foreclosure proceedings, any harm arising from DBNTC’s
 3   foreclosure proceeding is not logically attributable to the
 4   so-called false written instruments; rather, it is attributable
 5   to the Riveras’ default on their loan obligations.    As the
 6   bankruptcy court pointed out, the Riveras admitted in other court
 7   filings that they had fallen behind on their loan payments.    The
 8   Riveras have not challenged this point on appeal.    In light of
 9   this admitted default, we cannot reasonably infer from the
10   Riveras’ allegations that they have been harmed by the allegedly
11   false written instruments.   See Iqbal, 556 U.S. at 678.
12        Our reasoning is consistent with a number of California
13   appellate court decisions holding that, when a borrower is in
14   default and seeks to challenge the foreclosure process by
15   attacking a prior assignment of the deed of trust, the borrower
16   must allege particularized prejudice arising from the assignment
17   – either that the allegedly invalid assignment interfered with
18   his or her ability to make loan payments or that the original
19   lender would not have initiated foreclosure proceedings.    See,
20   e.g., Siliga, 219 Cal.App.4th at 85; Herrera v. Fed. Nat'l Mortg.
21   Ass'n, 205 Cal.App.4th 1495, 1507-08 (2012); Fontenot,
22   198 Cal.App.4th at 272.
23        Because the Riveras second amended complaint did not allege
24   any legally congnizable harm arising form the subject written
25   instruments, the bankruptcy court did not err when it dismissed
26   the Riveras’ cancellation of written instruments claim.
27   3.   Third Claim for Relief – For Slander of Title
28        “Slander of title is a ‘tortious injury to property

                                     22
 1   resulting from unprivileged, false, malicious publication of
 2   disparaging statements regarding the title to property owned by
 3   plaintiff, to plaintiff's damage.’”    In re Cedano, 470 B.R. at
 4   533 (quoting Southcott v. Pioneer Title Co., 203 Cal.App.2d 673,
 5   676 (1962)).    Recording a facially valid written instrument with
 6   no underlying merit can give rise to a slander of title claim for
 7   relief.   In re Cedano, 470 B.R. at 533 .   The elements for a
 8   slander of title claim are: “(1) publication, (2) absence of
 9   justification, (3) falsity, and (4) direct pecuniary loss.”      Id.
10        The Riveras’ slander of title claim is based on the same
11   legal theories as their cancellation of written instruments
12   claim.    It also suffers from the same fatal deficiencies.   Thus,
13   the bankruptcy court did not err when it dismissed the Riveras’
14   slander of title claim.
15   4.   Fourth Claim for Relief – for Violation of California’s
16        Unfair Competition Law, Cal. Bus. & Prof. Code § 17200
17        The Riveras’ fourth claim for relief alleges that DBNTC
18   engaged in unfair, unlawful and fraudulent business practices
19   within the meaning of Cal. Bus. & Prof. Code § 17200, et seq.,
20   which is known as California’s Unfair Competition Law (“UCL”).
21   To establish their right to pursue their UCL claim, the Riveras
22   needed to allege, among other things, that they lost money or
23   property “as a result of” the alleged unfair business practice.
24   Kwikset Corp. v. Super. Ct., 51 Cal.4th 310, 321-22 (2011).
25        In their UCL claim for relief, the Riveras allege against
26   DBNTC a number of different wrongful practices arising from the
27   same activities complained of throughout their second amended
28   complaint.   Even if we were to assume that these allegedly

                                      23
 1   wrongful practices are actionable under the UCL, the Riveras have
 2   not alleged facts from which we reasonably can infer that they
 3   personally have been injured by those practices.    See Iqbal,
 4   556 U.S. at 678.
 5        We already have explained in detail above the fatal
 6   deficiencies in the Riveras’ second amended complaint concerning
 7   the issues of causation and injury.    More specifically, we
 8   explained that any loss they might have suffered as a result of
 9   DBNTC’s foreclosure proceedings is logically and legally the
10   result of the Riveras’ default on their loan obligations rather
11   than the result of Chase’s and DBNTC’s alleged conduct.
12   Accordingly, the bankruptcy court did not err when it dismissed
13   the Riveras’ slander of title claim.
14   5.   Fifth Claim for Relief – for violation of the Federal Truth
15        In Lending Act, 15 U.S.C. § 1641(g)
16        The Riveras’ TILA Claim alleged, quite simply, that they did
17   not receive from DBNTC, at the time of Chase’s assignment of the
18   deed of trust to DBNTC, the notice of change of ownership
19   required by 15 U.S.C. § 1641(g)(1).    That section provides:
20        In addition to other disclosures required by this
          subchapter, not later than 30 days after the date on
21        which a mortgage loan is sold or otherwise transferred
          or assigned to a third party, the creditor that is the
22        new owner or assignee of the debt shall notify the
          borrower in writing of such transfer, including--
23
          (A) the identity, address, telephone number of the new
24        creditor;
25        (B) the date of transfer;
26        (C) how to reach an agent or party having authority to
          act on behalf of the new creditor;
27
          (D) the location of the place where transfer of
28        ownership of the debt is recorded; and

                                      24
 1        (E) any other relevant information regarding the new
          creditor.
 2
 3        The bankruptcy court did not explain why it considered this
 4   claim as lacking in merit.   It refers to the fact that the
 5   Riveras had actual knowledge of the change in ownership within
 6   months of the recordation of the trust deed assignment.       But the
 7   bankruptcy court did not explain how or why this actual knowledge
 8   would excuse noncompliance with the requirements of the statute.
 9        Generally, the consumer protections contained in the statute
10   are liberally interpreted, and creditors must strictly comply
11   with TILA’s requirements.    See McDonald v. Checks–N–Advance, Inc.
12   (In re Ferrell), 539 F.3d 1186, 1189 (9th Cir. 2008).     On its
13   face, 15 U.S.C. § 1640(a)(2)(A)(iv) imposes upon the assignee of
14   a deed of trust who violates 15 U.S.C. § 1641(g)(1) statutory
15   damages of “not less than $400 or greater than $4,000.”
16        While the Riveras’ TILA claim did not state a plausible
17   claim for actual damages, it did state a plausible claim for
18   statutory damages.   Consequently, the bankruptcy court erred when
19   it dismissed the Riveras’ TILA claim.
20   6.   Dismissal without leave to amend
21        Because we are affirming the bankruptcy court’s dismissal of
22   at least some of the Riveras’ claims for relief, it is
23   appropriate for us to acknowledge the issue of the bankruptcy
24   court’s denial of leave to amend.     In appeals from Civil
25   Rule 12(b)(6) dismissals, we typically review the court’s
26   decision to deny leave to amend.      See, e.g., Tracht Gut, LLC v.
27   Cnty. of L.A. Treasurer & Tax Collector (In re Tracht Gut, LLC),
28   503 B.R. 804, 814-15 (9th Cir. BAP     2014); Nordeen v. Bank of

                                      25
 1   Am., N.A. (In re Nordeen), 495 B.R. 468, 489-90 (9th Cir. BAP
 2   2013).   Here, however, the Riveras did not argue in either the
 3   bankruptcy court or in their opening appeal brief that the court
 4   should have granted them leave to amend.   Having not raised the
 5   issue in either place, we may consider it forfeited.   See Golden
 6   v. Chicago Title Ins. Co. (In re Choo), 273 B.R. 608, 613 (9th
 7   Cir. BAP 2002).
 8        Even if we were to consider the issue, we note that the
 9   bankruptcy court gave the Riveras two chances to amend their
10   complaint to state viable claims for relief, examined the claims
11   they presented on three occasions and found them legally
12   deficient each time.   Moreover, the Riveras have not provided us
13   with all of the record materials that would have permitted us a
14   full view of the analyses and explanations the bankruptcy court
15   offered them when it reviewed the Riveras’ original complaint and
16   their first amended complaint.   Under these circumstances, we
17   will not second-guess the bankruptcy court’s decision to deny
18   leave to amend.   See generally In re Nordeen, 495 B.R. at 489-90
19   (examining multiple opportunities given to the plaintiffs to
20   amend their complaint and the bankruptcy court’s efforts to
21   explain to them the deficiencies in their claims, and ultimately
22   determining that the court did not abuse its discretion in
23   denying the plaintiffs leave to amend their second amended
24   complaint).
25                               CONCLUSION
26        In ruling on DBNTC’s motion to dismiss the Riveras’ second
27   amended complaint, the bankruptcy court erred when it dismissed
28   the Riveras’ first and fifth claims for relief, but the court did

                                      26
 1   not err when it dismissed the Riveras’ second, third and fourth
 2   claims for relief.   Accordingly, we AFFIRM the dismissal of the
 3   second, third and fourth claims for relief, we REVERSE the
 4   dismissal of the first and fifth claims for relief, and we REMAND
 5   for further proceedings.
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