                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 28 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


FERNANI S. NARVASA,                             No.    17-15163

             Plaintiff-Appellant,               D.C. No.
                                                2:15-cv-02369-KJM-EFB
 v.

U.S. BANCORP, DBA U.S. Bank, N.A.,              MEMORANDUM*

             Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                     Argued and Submitted February 15, 2018
                            San Francisco, California

Before: HAWKINS and TALLMAN, Circuit Judges, and MURPHY,** District
Judge.

      Fernani Narvasa (“Narvasa”) appeals the Federal Rule of Civil Procedure

(“Rule”) 12(b)(6) dismissal of her action against U.S. Bancorp (“Bancorp”) which

relied on preemption through the National Bank Act (“NBA”), 12 U.S.C. § 24, and

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Stephen J. Murphy III, United States District Judge for
the Eastern District of Michigan, sitting by designation.
its corresponding regulations, 12 C.F.R. § 34.4(a)(9) (2018). We decline to address

the preemption question and affirm on the alternative ground that the complaint failed

to adequately allege a plausible theory of liability.

       Narvasa’s claims stemmed from an alleged violation of California Civil Code

§ 2923.6(f)(3) (2017) (repealed 2018), which required the lender to provide certain

information if “the denial is the result of a net present value calculation.” Narvasa’s

complaint alleges the bank denied her loan modification application based on net

present value (“NPV”), but the actual denial notice, attached as an exhibit to the

complaint, does not explicitly state or impliedly suggest that the modification was

denied on this basis. Although we usually must accept allegations stated in the

complaint as true for purposes of a Rule 12(b)(6) dismissal, “we are not required to

accept as true conclusory allegations which are contradicted by documents referred

to in the complaint.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th

Cir. 1998).

      Here, the denial letter sent to Narvasa contained a “Loss Mitigation Review

Determination Summary,” which identified fifteen different types of loan programs




                                            2
and provided an explanation why the bank denied her loan for each.1 None mention

NPV.

       Narvasa concedes as much in her reply brief, but argues that “her counsel’s

discussion with USB’s representative confirmed that the denial was indeed based on

the NPV calculations.” This, however, is not what the complaint alleges. Narvasa

alleges her counsel contacted Bancorp to discuss the denial, but she does not allege

that during that conversation the bank admitted the denial was based on NPV. Rather,

she alleges only that the Bancorp representative stated the bank did not need to

provide its NPV calculations and that it “never provide[s] such information.” This is

not a concession that NPV was actually the basis for the denial under any of the

fifteen programs.

       Because Narvasa did not adequately allege a violation of California Civil Code

§ 2923.6(f)(3), we affirm the district court’s dismissal of Narvasa’s complaint.

       AFFIRMED.



       1
         Reasons proffered included “your loan is not a second lien mortgage,” “the
account is due more than eleven contractual payments at this time,” “an account was
previously modified under this program on your behalf making you ineligible for this
program again,” and “the application indicated that you wish to retain home
ownership, therefore the account was not reviewed for this program.” The remaining
appear to have been denied based on the borrower’s income: “We are unable to create
an affordable monthly payment amount without altering your account beyond the
program limitations,” and “your income is insufficient to support a repayment plan.”


                                          3
