                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 22 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FAIZ SHOLIAY,                                    No. 13-17310

              Plaintiff - Appellant,             D.C. No. 2:13-cv-00958-WBS-DAD

 v.
                                                 MEMORANDUM*
FEDERAL NATIONAL MORTGAGE
ASSOCIATION; U.S. BANK N.A.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                       for the Eastern District of California
                William B. Shubb, Senior District Judge, Presiding

                          Submitted December 11, 2015**
                             San Francisco, California

Before: CLIFTON and OWENS, Circuit Judges and SMITH,*** Chief 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 William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
      Plaintiff Faiz Sholiay appeals the district court’s order dismissing with

prejudice his complaint against Defendants, Federal National Mortgage

Association and U.S. Bank, for failure to state a claim. We review the district

court’s dismissal de novo. WPP Luxembourg Gamma Three Sarl v. Spot Runner,

Inc., 655 F.3d 1039, 1047 (9th Cir. 2011). On appeal, Sholiay claims three causes

of action against Defendants: wrongful foreclosure, fraud and negligent

misrepresentation, and violation of California’s Business and Professions Code

§ 17200.

      The district court analyzed the wrongful foreclosure claim as a breach of

contract claim, but Sholiay cannot succeed under either framework. Sholiay has

not pointed to any enforceable contract between himself and Defendants. The letter

in which Sholiay claims U.S. Bank promised to provide him with a loan

modification if he qualifies under Home Affordable Mortgage Program (“HAMP”)

guidelines does not actually contain such a promise. It only states that the bank will

consider his application and “may” offer a trial payment plan if he is qualified.

Further, Sholiay does not have standing to sue under HAMP itself. See Klamath

Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1211 (9th Cir. 1999).

Nor has Sholiay pleaded the elements of wrongful foreclosure. He has not

contested that he was in default on a valid mortgage held by the Defendants or


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argued that Defendants failed to comply with the procedural requirements for

notice or conduct of the sale of his house. West v. JPMorgan Chase Bank, N.A.,

214 Cal. App. 4th 780, 800 (2013).

      The district court concluded that Sholiay’s fraud and negligent

misrepresentation claims were based solely on Defendants’ alleged failure to

perform their contractual obligations and, as a result, should be enforced through

contract rather than tort law. See Aas v. Superior Court, 24 Cal. 4th 627, 643

(2000), superseded by statute on other grounds. Considering the tort claims on the

merits, they fail for the same reason the contract claims fail: U.S. Bank did not

represent to Sholiay that it would provide him with a loan modification, but instead

only that it would consider his application. While the bank indicated the possibility

of postponing foreclosure proceedings, it was clear that it would do so only under

circumstances Sholiay had not met. These were not false representations, so the

fraud and negligent misrepresentation claims fail on the first step of the claim’s

analysis. See West, 214 Cal. App. 4th at 792. Sholiay’s additional allegation that an

employee of U.S. Bank misrepresented to him that he would be placed into HAMP

is insufficiently specific and cannot survive a motion to dismiss. See Swartz v.

KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007).




                                          3
      The district court concluded that Sholiay’s claim under California’s Business

and Professions Code § 17200 failed for lack of standing because Sholiay failed to

allege that Defendants’ conduct was the cause of his injury, as distinguished from

his admitted default on the loan. In his opening brief before this court, Sholiay did

not advance any legal argument challenging this conclusion. “Our circuit has

repeatedly admonished that we cannot ‘manufacture arguments for an appellant’

and therefore we will not consider any claims that were not actually argued in

appellant’s opening brief.” Indep. Towers of Wash. v. Washington, 350 F.3d 925,

929 (9th Cir. 2003). As a result, we treat Sholiay’s challenge to the district court’s

finding that he lacked standing under § 17200 as waived.

      Sholiay makes no argument that he should have been granted leave to amend

his complaint, though he includes “whether . . . Appellant should have been

granted leave to amend” in the “Issue Presented” section of his opening brief. That

is not an argument. As a result, he has waived this challenge. See Greenwood v.

F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (“[A] bare assertion does not preserve a

claim.”).

      AFFIRMED.




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