                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 23 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MARIETTA REYES                                  No.   16-56883

                Plaintiff-Appellant,
                                                D.C. No.
 v.                                             2:15-cv-07982-DSF-E

THE BANK OF NEW YORK MELLON, as
Trustee for the Certificateholders of the       MEMORANDUM*
CWALT, Inc., Alternative Loan Trust 2006-
0A19, Mortgage Pass-Through Certificates,
Series 2006-0A19 formerly known as The
Bank of New York Erroneously Sued As
Bank of New York Mellon; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                       Argued and Submitted April 13, 2018
                            San Francisco, California

Before: BEA and MURGUIA, Circuit Judges, and MOLLOY, ** District Judge.

      In 2006, Plaintiff-Appellant Marietta Reyes executed a promissory note


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
secured by a deed of trust encumbering her primary residence (the “Loan”).

Subsequently, the Loan was transferred by the original lender to a trust holding many

pooled notes (the “Trust”), for which Bank of New York Mellon (“BNY Mellon”)

is currently the trustee. Reyes defaulted on her loan several times from 20092014.

In 2011, the Trust, through its agents, recorded a notice of default with respect to

Reyes’s Loan in the County of Los Angeles. The notice of default was later duly

rescinded, but Reyes defaulted again in 2014. Reyes retained counsel to attempt to

negotiate a loan modification and then sued BNY Mellon in California state court,

claiming that the Trust had no legal right to enforce the now-defaulted Loan.

      BNY Mellon removed the suit to federal court based on diversity jurisdiction

and sought to dismiss the complaint for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6). The district court granted, in part, BNY Mellon’s

motion to dismiss, but allowed one claim, not at issue here, to proceed to summary

judgment. In her appeal, Reyes challenges only the district court’s order granting,

in part, BNY Mellon’s motion to dismiss.1

      We review de novo a district court’s decision to grant a motion to dismiss for

failure to state a claim. Olympic Forest Coal. v. Coast Seafoods Co., 884 F.3d 901,

905(9th Cir. 2018). The plaintiff’s plausible factual allegations are accepted as true



1
     Reyes does not challenge the district court’s later order granting BNY
Mellon’s motion for summary judgment.
                                      2
and construed in the light most favorable to the claim. Id. We may affirm an order

dismissing a claim on any basis fairly supported by the record, whether or not the

district court relied on that particular ground. Steckman v. Hart Brewing, Inc., 143

F.3d 1293, 1295 (9th Cir. 1998).

      Reyes’s only argument on appeal is that the transfer of her Loan to the Trust

violated the Trust’s Pooling Services Agreement (the “Agreement”)—which

governs the operation of the Trust—because the Loan was transferred to the Trust

after the closing date set out in the Agreement, and because there was not an

“unbroken chain of transfers and assignments to and from each intervening party,”

as required by the Agreement. Reyes’s argument is foreclosed by In re Turner, 859

F.3d 1145 (9th Cir. 2017). There we held that a borrower in Reyes’s position cannot

claim that a trustee lacks authority to enforce the pooled note if the transfer to the

trust is merely voidable at the option of the trust, rather than void. Id. at 1149.

Moreover, a transfer that merely violates the terms of a trust’s Agreement is voidable

at the option of the trust, not void. Id. As a result, even if Reyes is correct and the

transfer of her Loan to the Trust violated the terms of the Agreement, that fact

cannot, as a matter of law, support her claims.

      Because Reyes’s claims fail as a matter of law, the district court did not err in

granting, in part, BNY Mellon’s motion to dismiss.

      AFFIRMED.

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