                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 04 2015

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



                            FOR THE NINTH CIRCUIT


JAMES HERMAN, an individual,                     No. 13-55820

              Plaintiff - Appellant,             D.C. No. 2:13-cv-00233-JFW-RZ

  v.
                                                 MEMORANDUM*
US BANK NA, as Trustee for the benefit
of Harbor View 2005-1 Trust Fund, a
National Association and BAC HOME
LOANS SERVICING LP, a Texas Limited
Partnership,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                           Submitted February 2, 2015**
                              Pasadena, California

Before: D.W. NELSON, BYBEE, and IKUTA, Circuit Judges.




        *
             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).
      Appellant James Herman appeals the district court’s dismissal of his

complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of

Civil Procedure. We have jurisdiction under 28 U.S.C. § 1291.

      Herman does not contest that he is in default on his mortgage or that the

original lender could foreclose on his home. Instead, he premises his wrongful

foreclosure claim on “asserted defects in the chain of assignments and the absence

of ‘lawful ownership’ of the note” by the defendants. Debrunner v. Deutsche Bank

Nat’l Trust Co., 204 Cal. App. 4th 433, 444 (2012). Such defects are insufficient

to show prejudice, see id. at 443–44, and Herman failed to plead any other facts

demonstrating prejudice. Therefore, the district court did not err in dismissing

Herman’s claim for wrongful foreclosure. See Herrera v. Fed. Nat’l Mortg. Ass’n,

205 Cal. App. 4th 1495, 1507 (2012).

      For the first time on appeal, Herman argues that the defendants breached

their duty of care by failing to provide an adequate response to his inquiries

regarding a loan modification. Herman waived this theory of relief because he

failed to raise this claim in his complaint or to the district court. See Turnacliff v.

Westly, 546 F.3d 1113, 1120 (9th Cir. 2008). Even if we were to address the

merits of this claim, we would affirm the district court, because the defendants did

not agree to review and process Herman’s loan modification and therefore did not


                                            2
owe him a duty of care. See Lueras v. BAC Home Loans Servicing, LP, 221 Cal.

App. 4th 49, 67 (2013); see also Alvarez v. BAC Home Loans Servicing, L.P., 228

Cal. App. 4th 941, 948–49 (2014) (finding a duty where “defendants allegedly

agreed to consider modification of the plaintiffs’ loans”).

      AFFIRMED.




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