                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            MAR 10 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


MARIALUZ A. BANARES,                             No.   15-15419

              Plaintiff-Appellant,               D.C. No. 3:13-cv-04896-VC

 v.
                                                 MEMORANDUM*
WELLS FARGO BANK, NA; HSBC
BANK USA, N.A., as Trustee for Wells
Fargo Asset Securities Corporation
Mortgage Pass-Through Certificates,
Series 2007-8,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Vince G. Chhabria, District Judge, Presiding

                     Argued and Submitted February 16, 2017
                            San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and GARBIS,** District Judge.




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
          The Honorable Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
      Appellant Marialuz Banares obtained a home loan secured by a deed of trust

from Appellee Wells Fargo Bank, N.A (“Wells Fargo”). Through a series of

assignments, Wells Fargo sold the loan to a securitized trust, for which Appellee

HSBC Bank USA (“HSBC”) served as trustee. Banares defaulted on the loan and,

before a scheduled foreclosure sale, filed this lawsuit against Wells Fargo and

HSBC. The district court dismissed the case. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      1. Banares did not state a claim for wrongful foreclosure. See Fed. R. Civ.

P. 12(b)(6). Banares alleges that three assignments of her loan were defective: (1)

the assignment on or before June 28, 2007 from Wells Fargo to the special purpose

vehicle Wells Fargo Asset Securities Corporation Mortgage Pass-Through

Certificates 2007-8 (“WFASC”); (2) the assignment on or before June 28, 2007

from WFASC to HSBC; and (3) the assignment on March 26, 2013, from Wells

Fargo to HSBC. Because the three assignments all involved the same loan, the

third assignment, if valid, would have cured any defect from the first two. If

Banares did not properly allege that the third assignment was defective, then her

wrongful foreclosure claim fails.

      Banares is unable to assert a claim for wrongful foreclosure over the third

assignment. When the parties briefed this appeal, the California Courts of Appeal


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were split over the circumstances under which a borrower could assert wrongful

foreclosure to challenge a defective assignment of the borrower’s loan. Compare

Jenkins v. JP Morgan Chase Bank, Nat’l Ass’n, 216 Cal. App. 4th 497, 511–13

(2013); with Glaski v. Bank of Am., N.A., 218 Cal. App. 4th 1079, 1098–99 (2013).

After the parties’ briefing, the California Supreme Court clarified its law, in part.

In Yvanova v. New Century Mortg. Corp., the California Supreme Court held that a

wrongful foreclosure plaintiff may, after a foreclosure sale has taken place,

challenge an assignment to the foreclosing entity if the assignment was void. 62

Cal. 4th 919, 935 (2016). But the court explicitly left open whether an assignment

like the alleged third assignment here—one into a New York securitized trust in

violation of the trust’s governing agreement—would be void or voidable. Id. at

931. The California Supreme Court held that if merely voidable, the assignment

would not give rise to a claim for wrongful foreclosure. Id. at 936.

      New York’s highest court has not addressed whether an assignment into a

New York securitized trust in violation of the trust’s terms is voidable or void. But

the Second Circuit has concluded that the weight of New York authority holds that

it is voidable. See Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 88–89

(2d Cir. 2014) (collecting cases); see also United States v. Rivera-Ramos, 578 F.3d

1111, 1113 (9th Cir. 2009) (“In the absence of compelling reasons, we would not


                                           3
create a circuit split with the circuit that encompasses New York regarding the

meaning of New York law.”). As Banares has not alleged facts showing that the

third assignment was void rather than voidable, or that the parties to the third

assignment took steps to avoid it, her claim for wrongful foreclosure fails.

Because Banares’s claim fails in any event, we need not reach, and decline to

address, whether California law permits preemptive wrongful foreclosure actions

after Yvanova.

      2. Banares did not state a claim under the Real Estate Settlement Procedures

Act, 12 U.S.C. § 2601 et seq. While Wells Fargo’s failure to answer Banares’s

Qualified Written Request (“QWR”) may have violated 12 U.S.C. § 2605(e),

Banares did not sufficiently plead damages arising from that violation. If Wells

Fargo had responded to Banares’s QWR with more information about the

ownership of her loan, Banares would still have been in default and subject to

foreclosure. See Tamburri v. Suntrust Mortg., Inc., 875 F. Supp. 2d 1009, 1014

(N.D. Cal. 2012).

      3. Banares’s claims for fraud and violation of California’s Unfair

Competition Law, Cal. Bus. & Prof. Code § 17200 et seq., similarly fail because

she insufficiently alleged damages. Again, her harm did not arise from one party




                                           4
owning the loan rather than another. See Jenkins, 216 Cal. App. 4th at 522–23,

overruled on other grounds by Yvanova, 62 Cal. 4th 919.

      4. Banares did not state a claim for quiet title because she has not tendered

her outstanding loan balance. See Lueras v. BAC Home Loans Servicing, LP, 221

Cal. App. 4th 49, 86 (2013).

      5. Banares did not state a claim for unjust enrichment because the retention

of loan payments by HSBC, the alleged invalid beneficiary, would not have

unjustly enriched HSBC at the expense of Banares, but rather at the expense of the

true beneficiary. See Ghirardo v. Antonioli, 14 Cal. 4th 39, 51 (1996).

      6. Banares’s claim for violation of California Civil Code § 2934a fails

because she has not plausibly alleged that HSBC is not the true beneficiary.

Because the assignment from Wells Fargo to HSBC was voidable—not void—and

has not been avoided, it was valid and cured any defects from the first two

assignments.

      7. Banares’s claim for slander of title fails because she did not argue it in

her opening brief. See Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626

F.3d 483, 487 (9th Cir. 2010).

      8. The district court did not abuse its discretion in denying leave to amend.

See Chaset v. Fleer/Skybox Int’l, LP, 300 F.3d 1083, 1087–88 (9th Cir. 2002).


                                          5
After a previous opportunity to amend, Banares “filed a virtually identical

complaint.” The few allegations Banares added did not claim any new damages

unrelated to her outstanding loan balance or the consequences of foreclosure.

Further amendment would be futile.

      AFFIRMED.




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