                                                         FILED
 1                         NOT FOR PUBLICATION            JUN 20 2017
                                                      SUSAN M. SPRAUL, CLERK
 2                                                      U.S. BKCY. APP. PANEL
                                                        OF THE NINTH CIRCUIT
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
                              OF THE NINTH CIRCUIT
 4
 5   In re:                        )      BAP No. AZ-16-1005-LBJu
                                   )
 6   CHRISTINA M. RAVAGO,          )      Bk. No. 13-16053-BMW
                                   )
 7                  Debtor.        )      Adv. No. 14-00066-BMW
     ______________________________)
 8                                 )
     CHRISTINA M. RAVAGO,          )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )      M E M O R A N D U M*
11                                 )
     BANK OF AMERICA; RECONTRUST   )
12   COMPANY; LANDSAFE APPRAISAL   )
     SERVICES; MICHAEL LEBSACK;    )
13   NATIONSTAR MORTGAGE LLC;      )
     NATIONSTAR MORTGAGE HOLDINGS, )
14   INC.,                         )
                                   )
15                  Appellees.     )
     ______________________________)
16
                      Argued and Submitted on May 18, 2017
17                             at Phoenix, Arizona
18                           Filed - June 20, 2017
19            Appeal from the United States Bankruptcy Court
                        for the District of Arizona
20
       Honorable Brenda Moody Whinery, Bankruptcy Judge, Presiding.
21                       _________________________
22   Appearances:     Jana Happel of Southern Arizona Legal Aid, Inc.
                      argued for Appellant Christina M. Ravago; Andrea
23                    McDonald Hicks argued for Appellees Bank of
                      America, Landsafe Appraisal Services, Michael
24                    Lebsack and ReconTrust Company; Melissa Louise
                      Cizmorris of Akerman LLP argued for Appellees
25
26        *
           This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8024-1.
 1                     Nationstar Mortgage Holdings, Inc. and Nationstar
                       Mortgage LLC.
 2                          _________________________
 3   Before: LAFFERTY, BRAND, and JURY, Bankruptcy Judges.
 4
 5                                INTRODUCTION
 6            During her chapter 131 bankruptcy, Debtor Christina M.
 7   Ravago filed an adversary proceeding seeking damages against her
 8   mortgage lender and related parties under various theories, all
 9   of which were based on allegations that the defendants had
10   violated the terms of the National Mortgage Settlement (“NMS”)2
11   by proceeding with a prepetition trustee’s sale of her residence
12   while her application for a loan modification was under
13   consideration.     The bankruptcy court dismissed all but one of
14   Debtor’s claims without leave to amend, concluding that the NMS
15   did not create a private right of action for individual borrowers
16   to enforce its terms.     We AFFIRM.
17
18
19
          1
           Unless specified otherwise, all chapter and section
20   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all
     “Rule” references are to the Federal Rules of Bankruptcy
21   Procedure, and all “Civil Rule” references are to the Federal
22   Rules of Civil Procedure. “ARS” references are to the Arizona
     Revised Statutes.
23
          2
           Under the NMS, which was finalized in 2012, five of the
24   country’s largest mortgage servicers/banks (Ally/GMAC, Bank of
     America, Citi, JP Morgan Chase, and Wells Fargo) agreed to
25   provide $20 billion of mortgage-related relief to homeowners and
26   to abide by new servicing standards meant to address some of the
     worst foreclosure abuses. Under the NMS, only state attorneys
27   general can sue for alleged noncompliance with its terms.
     Penermon v. Wells Fargo Bank, N.A., 47 F. Supp. 3d 982, 993 n.2
28   (N.D. Cal. 2014).

                                       -2-
 1                                   FACTS
 2        On July 17, 2013, Debtor’s Tucson residence (the “Property”)
 3   was sold at a trustee’s sale.    Although Debtor acknowledged she
 4   was in default and had notice of the sale, she believed that the
 5   trustee’s sale would be cancelled or postponed pending
 6   consideration of her recently submitted loan modification
 7   application.
 8        On September 16, 2013, Debtor filed a chapter 13 petition.
 9   Despite the fact that the Property had been sold and a trustee’s
10   deed recorded, Debtor listed on her schedules both the Property
11   and a debt to Nationstar Mortgage LLC (“Nationstar”) secured by
12   the Property.    In her plan, which was confirmed December 31,
13   2015, Debtor proposed an ongoing monthly mortgage payment to
14   Nationstar and indicated that she intended to file an adversary
15   proceeding to challenge the trustee’s sale and to bring “claims
16   relating to breach of contract; violation of FHA regulations;
17   etc.”    Debtor also listed on Schedule B a “[c]laim against Bank
18   of America, Nationstar, Recon[T]rust, House Appraisor [sic] for
19   wrongful foreclosure, violation of the National Mortgage
20   Settlement Agreement, breach of contract, etc.    To be filed as
21   adversary proceeding.”
22        On October 4, 2013, Debtor filed a proof of claim on behalf
23   of Nationstar, asserting a secured claim of $90,000 and an
24   unsecured claim of $20,000.3    On January 21, 2014, Debtor filed a
25   complaint against Appellees Bank of America, N.A. dba Bank of
26
27
          3
           Debtor later filed an amended claim that reduced the
28   unsecured portion of the debt.

                                      -3-
 1   America Home Loan Servicing (“B of A”), Nationstar Mortgage
 2   Holdings, Inc., and Nationstar (collectively, “Nationstar
 3   Defendants”), ReconTrust Company, N.A., Landsafe Appraisal
 4   Services, Inc., and Michael Lebsack, an appraiser who conducted
 5   an appraisal of the Property on behalf of B of A.   The Complaint
 6   pleaded seven causes of action: (1) an objection to the proof of
 7   claim that Debtor had filed on behalf of Nationstar on grounds
 8   that any debt owed to Nationstar was unenforceable; (2) violation
 9   of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
10   § 1692 et seq., against ReconTrust and the Nationstar Defendants;
11   (3) violation of the Arizona Consumer Fraud Act (“ACFA”), ARS
12   § 44-1521 et seq., against the Nationstar Defendants; (4) common
13   law fraud against B of A and the Nationstar Defendants;
14   (5) negligent misrepresentation against Landsafe and Lebsack;
15   (6) tortious breach of the duty of good faith and fair dealing
16   against B of A and the Nationstar Defendants; and (7) filing
17   false documents under ARS § 33-420 against ReconTrust and the
18   Nationstar Defendants.4   Debtor sought monetary damages for each
19   cause of action except the claim objection.
20        According to the general allegations of the complaint,
21   Debtor purchased the Property in September 2009.    Debtor obtained
22   a loan for the purchase from KB Home Mortgages LLC; the note
23   representing the obligation was secured by a deed of trust
24
25        4
           Causes of action 1, 4, and 5 are not at issue in this
26   appeal. The bankruptcy court disallowed the Nationstar claim
     filed by Debtor because Nationstar did not oppose the objection
27   and, on appeal, Debtor has not assigned error to the dismissal of
     the negligent misrepresentation claim or the common law fraud
28   claim.

                                     -4-
 1   against the Property.    In January 2012 the note and deed of trust
 2   were assigned to B of A.   On April 30, 2012, B of A substituted
 3   ReconTrust as the trustee under the deed of trust.
 4        Debtor further alleged that nearly a year later, on
 5   April 10, 2013, ReconTrust recorded a “Notice of Trustee’s Sale
 6   Arizona” indicating that a trustee’s sale was scheduled for
 7   July 17, 2013.   Debtor contacted B of A to ask for help with her
 8   payments and thereafter completed a loan modification application
 9   and transmitted the application and supporting documentation to
10   B of A at a fax number provided by B of A.   B of A sent Debtor a
11   letter dated May 21, 2013, informing her that her loan
12   modification application had been denied because B of A had not
13   received proper documentation within the required time frame.
14   The letter did not explain what documentation was missing but
15   stated that Debtor had 30 days to appeal.
16        The allegations continue:   On May 30, 2013, before
17   expiration of the appeal period, Nationstar wrote to Debtor
18   informing her that, effective June 4, 2013, Nationstar “received
19   transfer of the loan.”   The letter also informed Debtor that any
20   pending loan modifications “will pick up where they left off and
21   will have all of your documentation” and provided information on
22   how to contact Nationstar.   B of A did not notify Debtor of the
23   transfer.   Debtor alleged on information and belief that
24   Nationstar “either did not inform ReconTrust of the change of
25   Beneficiary on the Deed of Trust, nor ratified without
26   notification of all other concerned parties, the Trustee’s sale
27   date, thereby misleading RAVAGO that B of A no longer had the
28   right to continue with the Trustee’s sale.” Complaint, ¶ 24c.

                                      -5-
 1   Because B of A did not inform Debtor that the trustee’s sale
 2   would proceed even after B of A sold its beneficial interest in
 3   the deed of trust to Nationstar, Debtor believed the trustee’s
 4   sale had been cancelled or stayed.
 5        According to the complaint, a few days after she received
 6   the May 30 letter from Nationstar, Debtor consulted a nonprofit
 7   housing counseling service and, with their help, submitted a loan
 8   modification application to Nationstar on June 10, 2013.    Three
 9   days later, Nationstar acknowledged receipt of the application
10   and assigned a Single Point of Contact to Debtor.   The Single
11   Point of Contact person was changed twice thereafter by letters
12   dated June 15 and July 31, 2013 (after the trustee’s sale).    On
13   June 17, 2013, Nationstar sent a letter to Debtor informing her
14   that Nationstar would review and determine eligibility within
15   20-60 days (the “June 17 Letter”).    Based on this representation,
16   Debtor believed Nationstar was considering her loan modification
17   application in lieu of proceeding with the trustee’s sale.    On
18   June 18, 2013, Nationstar requested additional documentation with
19   a deadline of July 19, 2013 (two days after the scheduled
20   trustee’s sale).   Debtor submitted the documentation prior to the
21   date of the scheduled trustee’s sale.
22        Debtor further alleged that on June 18, 2013, B of A
23   executed an assignment of its deed of trust to Nationstar; that
24   document was recorded July 16, 2013.    No copy of the assignment
25   was provided to Debtor.
26        On July 17, 2013, the Property was sold at a trustee’s sale
27   to Carboneros Corporation for $92,000.   ReconTrust executed a
28   Trustee’s Deed upon Sale granting the Property to Carboneros;

                                     -6-
 1   that document was recorded July 26, 2013; a corrected deed of
 2   trust (correcting the grantee’s name) was recorded August 20,
 3   2013.
 4        After the trustee’s sale, on July 31, 2013, Nationstar sent
 5   a letter to Debtor informing her that her Single Point of Contact
 6   had changed again and informing her of a website she could
 7   “contact” to obtain more information on workout solutions.
 8        Debtor further alleged that the NMS entered into on
 9   February 9, 2012 by the United States, 49 states, including
10   Arizona, and several mortgage lenders, including B of A, placed
11   restrictions on “dual tracking,” the practice of a mortgage
12   servicer to continue foreclosure proceedings while a loan
13   modification application is pending.   Other provisions of the NMS
14   address the treatment of pending loan modification applications
15   when servicing rights are transferred from a signatory to the NMS
16   to another servicer, i.e., the successor servicer is required to
17   accept and continue processing pending loan modification
18   requests.   Debtor alleged, on information and belief, that B of A
19   had not informed Nationstar of the status of Debtor’s loan
20   modification application; alternatively, she alleged that
21   Nationstar ignored any such communication from B of A.
22        On February 21, 2014, Defendants jointly moved to dismiss
23   the adversary proceeding under Civil Rule 12(b)(1) (applicable
24   via Rule 7012) for lack of subject matter jurisdiction and/or
25   because Defendants did not consent to the bankruptcy court’s
26   entry of a final judgment; because Debtor waived claims relating
27   to the trustee’s sale; and for failure to state a claim under
28   Civil Rule 12(b)(6).   Debtor filed an opposition, and Defendants

                                     -7-
 1   filed replies.   After several continuances, the hearing on the
 2   motion to dismiss occurred on November 6, 2014.     At that hearing,
 3   the bankruptcy court took the matter under advisement; the court
 4   issued its oral ruling at a hearing on June 11, 2015 and issued
 5   an order December 29, 2015 denying the motion to dismiss the
 6   first cause of action (objection to proof of claim no. 1),
 7   disallowing claim no. 1, and granting the motion to dismiss
 8   causes of action 2-7 with prejudice.     Debtor timely appealed.
 9                              JURISDICTION
10        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
11   §§ 1334 and 157(b)(2)(B) and (O).     We have jurisdiction under
12   28 U.S.C. § 158.
13                                 ISSUES
14        1.   Did the Nationstar Defendants waive their objection to
15   the bankruptcy court’s entry of a final judgment in the adversary
16   proceeding?
17        2.   Did the bankruptcy court err in dismissing Debtor’s
18   second cause of action for violation of the Fair Debt Collection
19   Practices Act?
20        3.   Did the bankruptcy court err in dismissing Debtor’s
21   third cause of action for violation of the AFCA?
22        4.   Did the bankruptcy court err in dismissing Debtor’s
23   sixth cause of action for tortious breach of the duty of good
24   faith and fair dealing?
25        5.   Did the bankruptcy court err in dismissing Debtor’s
26   seventh cause of action for filing false documents under
27   ARS § 33-420?
28        6.   Did Debtor waive any argument that the bankruptcy court

                                     -8-
 1   abused its discretion in dismissing Debtor’s Complaint with
 2   prejudice?
 3                             STANDARD OF REVIEW
 4        We review de novo whether the bankruptcy court had authority
 5   to enter a final judgment.    Hasse v. Rainsdon (In re Pringle),
 6   495 B.R. 447, 455 (9th Cir. BAP 2013).     We also review de novo
 7   the bankruptcy court’s order granting a motion to dismiss for
 8   failure to state a claim under Civil Rule 12(b)(6).     Movsesian v.
 9   Victoria Versicherung AG, 670 F.3d 1067, 1071 (9th Cir. 2012)
10   (en banc).   Under de novo review, we look at the matter anew, as
11   if it had not been heard before, and as if no decision had been
12   rendered previously, giving no deference to the bankruptcy
13   court’s determinations.    Freeman v. DirecTV, Inc., 457 F.3d 1001,
14   1004 (9th Cir. 2006).
15        The bankruptcy court’s dismissal of a complaint without
16   leave to amend is reviewed for abuse of discretion.     Tracht Gut,
17   LLC v. County of Los Angeles Treasurer & Tax Collector
18   (In re Tracht Gut, LLC), 503 B.R. 804, 810 (9th Cir. BAP 2014).
19   A bankruptcy court abused its discretion if it applied the wrong
20   legal standard or its findings were illogical, implausible or
21   without support in the record.    TrafficSchool.com, Inc. v.
22   Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).
23                                 DISCUSSION
24   A.   The Nationstar Defendants impliedly consented to the
25        bankruptcy court’s entry of a final judgment.
26        The Nationstar Defendants assert on appeal that the
27   bankruptcy court lacked authority to enter a judgment in the
28

                                      -9-
 1   adversary proceeding because it was not a core proceeding.5    In
 2   the bankruptcy court, the Nationstar Defendants expressly
 3   objected to the bankruptcy court’s entry of a final judgment but
 4   simultaneously moved to dismiss the complaint, i.e., for entry of
 5   a final judgment in favor of Defendants.   Although these
 6   conflicting assertions do not necessarily add up to a waiver of
 7   the Nationstar Defendants’ objection to the bankruptcy court’s
 8   authority to enter a final judgment, the Nationstar Defendants
 9   did not cross-appeal the bankruptcy court’s entry of a final
10   judgment, nor did they elect to appeal to an Article III court,
11   opting instead to submit to the jurisdiction of this Panel.
12   Under these circumstances, the Nationstar Defendants impliedly
13   consented to entry of a final judgment by the bankruptcy court.
14   See In re Pringle, 495 B.R. at 458-60 (once the tribunal’s
15   authority to enter a final judgment is put at issue, further
16   purposeful proceeding in the forum indicates consent), citing
17   Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins.
18   Agency, Inc.), 702 F.3d 553, 569 (9th Cir. 2012), aff’d, Exec.
19   Benefits Ins. Agency v. Arkison, ___ U.S. ___, 134 S. Ct. 2165
20   (2014).   See also Wellness Int’l Network, Ltd. v. Sharif, ___
21   U.S. ___, 135 S. Ct. 1932, 1947-48 (2015) (holding that consent
22
23
          5
           The caption to the jurisdiction discussion in the
24   Nationstar Defendants’ brief is “This Court Does Not Have Subject
     Matter Jurisdiction Over These Claims Because the Property was
25   Sold Prior to the Bankruptcy and was Not Part of the Estate.”
26   However, the body of the discussion focuses on the court’s
     authority to enter a final judgment and does not address subject
27   matter jurisdiction. As we have previously noted, subject matter
     jurisdiction and authority to enter a final judgment are distinct
28   matters. In re Pringle, 495 B.R. 455.

                                    -10-
 1   to bankruptcy court adjudication of non-core claims may be
 2   implied, so long as it is knowing and voluntary).
 3   B.   Standard on Motion to Dismiss
 4        A motion to dismiss under Civil Rule 12(b)(6) challenges the
 5   sufficiency of the allegations set forth in a complaint and may
 6   be based on either a lack of a cognizable legal theory or
 7   sufficient facts alleged under a cognizable legal theory.
 8   Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121
 9   (9th Cir. 2008).   The court’s review is limited to the
10   allegations of material facts set forth in the complaint, which
11   must be read in the light most favorable to the non-moving party
12   and, together with all reasonable inferences therefrom, must be
13   taken as true.   Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.
14   1998).
15        The factual allegations in the complaint must state a claim
16   for relief that is facially plausible.   Ashcroft v. Iqbal,
17   556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly,
18   550 U.S. 544 (2007).   “[D]etermining whether a complaint states a
19   plausible claim is context-specific, requiring the reviewing
20   court to draw on its experience and common sense.”   Iqbal,
21   556 U.S. at 679.   The Court need not “accept as true a legal
22   conclusion couched as a factual allegation.”   Iqbal, 556 U.S. 662
23   at 678.
24        “[W]here a complaint includes allegations of fraud, Federal
25   Rule of Civil Procedure 9(b) requires more specificity including
26   an account of the time, place, and specific content of the false
27   representations as well as the identities of the parties to the
28   misrepresentations.”   Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th

                                    -11-
 1   Cir. 2007) (citation and internal quotations omitted).
 2   C.   The bankruptcy court did not err in dismissing the second
 3        cause of action for violation of the FDCPA.
 4        Under the FDCPA, “[a] debt collector may not use any false,
 5   deceptive, or misleading representation or means in connection
 6   with the collection of any debt.”       15 U.S.C. § 1692e.   A “debt
 7   collector” is defined as any person (1) “who uses any
 8   instrumentality of interstate commerce or the mails in any
 9   business the principal purpose of which is the collection of any
10   debts,” or (2) “who regularly collects or attempts to collect,
11   directly or indirectly, debts owed or due or asserted to be owed
12   or due another.”   15 U.S.C. § 1692a(6).
13        Thus, to state a claim under the FDCPA, a plaintiff must
14   allege facts showing that the defendant fits one of the
15   definitions of “debt collector” and that the defendant used
16   false, deceptive, or misleading representations in connection
17   with the collection of a debt.    Here, Debtor alleged:
18             60. Defendants NATIONSTAR, NATIONSTAR, LLC, and
          RECONTRUST, and each of them, are debt collectors as
19        defined by the FDCPA, collecting debts owed for the
          owners of the note as a regular and normal part of
20        their business.
21             61. Defendants, and each of them, use various
          modes of interstate commerce to effectuate such debt
22        collection activities.
23             62. Defendants, and each of them, have used the
          mails to directly communicate with Plaintiff with
24        regard to collection of the mortgage note and of the
          security interest thereon.
25
               63. By communicating with RAVAGO by mail before
26        the document recording the transfer of the Deed of
          Trust and mortgage note by BoA on June 18, 2013,
27        NATIONSTAR and/or NATIONSTAR, LLC misrepresented the
          nature and amount of the debt owed, as no document had
28        been recorded nor any assignment communicated to RAVAGO

                                      -12-
 1        to show that NATIONSTAR or NATIONSTAR, LLC had any
          right to collect the note, thereby misrepresenting the
 2        nature and amount of the debt owed.
 3             64. By communicating via the mails and telephone
          from April through July, 2013, regarding the trustee
 4        sale, NATIONSTAR, NATIONSTAR LLC., and RECONTRUST, and
          each of them, communicated about an action that they
 5        were not legally entitled to take, as the trustee sale
          was not legally allowed to be taken pursuant to the
 6        Attorney General’s Settlement [NMSA] and Arizona Law.
 7        1.   The Nationstar Defendants were not debt collectors
 8             under FDCPA.
 9        Although the Complaint alleged that both ReconTrust and the
10   Nationstar Defendants were liable for violations of the FDCPA, on
11   appeal, Debtor challenges the dismissal only as it pertains to
12   the Nationstar Defendants.    Thus, we limit our analysis to those
13   defendants.
14        The allegation that the Nationstar Defendants collect “debts
15   owed for the owners of the note as a regular and normal part of
16   their business” is insufficient to permit an inference that the
17   Nationstar Defendants are debt collectors as defined by the FDCPA
18   or that they were acting as such when they were communicating
19   with the Debtor.   Paragraph 24 of the Complaint alleged that
20   Nationstar wrote to the Debtor informing her that it had
21   “received transfer of the loan” effective June 4, 2013 and that
22   Debtor thereafter began working with Nationstar to obtain a loan
23   modification.    The Complaint further alleged, at paragraph 35,
24   that B of A formally assigned the deed of trust to Nationstar on
25   June 18, 2013.
26        These allegations lead to the inference that as of June 4,
27   2013, Nationstar was acting on its own behalf in its efforts to
28   collect on the note and deed of trust.    Accordingly, Nationstar

                                     -13-
 1   was acting as a creditor and not a debt collector.   See Henson v.
 2   Santander Consumer USA Inc., ___ S. Ct. ___, 2017 WL 2507342, at
 3   *3 (Jun. 12, 2017) (entities that purchase debts originated by
 4   others and then seek to collect those debts on their own behalf
 5   are not “debt collectors” under the FDCPA).   See also Schlegel v.
 6   Wells Fargo Bank, NA, 720 F.3d 1204, 1208-10 (9th Cir. 2013).
 7   Debtor contends that Nationstar was a debt collector under the
 8   FDCPA because her loan was in default when it was assigned to
 9   Nationstar.   Debtor references 15 U.S.C. § 1692a(6)(F), which
10   excepts from the definition of debt collector “any person
11   collecting or attempting to collect any debt owed or due or
12   asserted to be owed or due another to the extent such activity
13   . . . (iii) concerns a debt which was not in default at the time
14   it was obtained by such person[.]” (emphasis added).   Debtor also
15   cites Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.
16   1985), in which the court noted that “[t]he legislative history
17   of section 1692a(6) indicates conclusively that a debt collector
18   does not include the consumer’s creditors, a mortgage servicing
19   company, or an assignee of a debt, as long as the debt was not in
20   default at the time it was assigned.” (emphasis added).     Debtor
21   reads these authorities as supporting the conclusion that if a
22   debt is in default when it is assigned, the assignee is a debt
23   collector.
24        However, the FDCPA defines a “creditor” as “any person who
25   offers or extends credit creating a debt or to whom a debt is
26   owed, but such term does not include any person to the extent
27   that he receives an assignment or transfer of a debt in default
28   solely for the purpose of facilitating collection of such debt

                                    -14-
 1   for another.”   15 U.S.C. § 1692a(4) (emphasis added).   Given the
 2   allegation that Nationstar informed Debtor that it had “received
 3   transfer of the loan” effective June 4, 2013, the only inference
 4   to be drawn is that Nationstar acted on its own behalf, i.e., as
 5   a creditor, in its subsequent collection efforts, despite the
 6   facts that the loan was in default and the deed of trust was not
 7   formally assigned until June 18, 2013 and recorded on July 16,
 8   2013.
 9        Even if Nationstar was acting as a servicer before B of A
10   formally assigned the deed of trust, mortgage servicers are not
11   “debt collectors” under the FDCPA.    Mansour v. Cal-Western
12   Reconveyance Corp., 618 F. Supp. 2d 1178, 1182 (D. Ariz. 2009)
13   (citing Perry, 756 F.2d at 1208; Hulse v. Ocwen Fed. Bank, 195 F.
14   Supp. 2d 1188, 1204 (D. Or. 2002).6
15        2.   The allegations of the Complaint do not support an
16             inference that the Nationstar Defendants made false,
17             deceptive, or misleading representations.
18        According to the Complaint, Nationstar Defendants’ deceptive
19   conduct consisted of misrepresenting “the nature and amount of
20   the debt owed” by communicating with Debtor before B of A had
21   assigned the deed of trust to Nationstar because, until the
22   assignment, Nationstar had no right to collect on the note and
23
          6
24         The Ninth Circuit Court of Appeals has recently held that
     an entity is not a “debt collector” for purposes of the FDCPA if
25   its only role in the debt collection process is the enforcement
26   of a security interest, i.e., a nonjudicial foreclosure. Ho v.
     ReconTrust Co., NA, No. 10-56884, 2016 WL 9019610, at *4 (9th
27   Cir. May 22, 2017). The Circuit noted, however, that if an
     entity that enforces a security interest engages in activities
28   that constitute debt collection, it is a debt collector. Id.

                                    -15-
 1   because the trustee’s sale was not legally allowed to go forward
 2   pursuant to the NMS and “Arizona law.”
 3        The NMS does not create a private right of action for
 4   enforcement of its terms.    See, e.g., Jurewitz v. Bank of
 5   America, 938 F. Supp. 2d 994, 997-98 (S.D. Cal. 2013); Rehbein v.
 6   CitiMortgage, Inc., 937 F. Supp. 2d 753, 760-62 (E.D. Va. 2013).
 7   Debtor does not dispute this, but seems to contend that the NMS
 8   created a duty to disclose that the foreclosure was still going
 9   forward despite the fact that a loan modification was in process.
10   However, nothing in the allegations of the Complaint suggest that
11   Nationstar LLC made any affirmative misrepresentations or failed
12   to disclose material facts in violation of federal or state law.
13   At oral argument, Debtor’s counsel asserted that even if the NMS
14   did not create a duty to disclose, the June 17 Letter to Debtor
15   informing her that Nationstar would determine her eligibility for
16   a loan modification within 20-60 days was misleading because the
17   trustee’s sale was set to occur in less than 60 days.    However,
18   the Complaint did not allege that the June 17 Letter was the
19   basis for the FDCPA claim.    While it is unfortunate that Debtor
20   made the assumption that the foreclosure sale was stayed or
21   cancelled, the Complaint does not plausibly allege that
22   Nationstar had an actionable legal duty to clarify that subject
23   with Debtor.
24   D.   The bankruptcy court did not err in dismissing the third
25        cause of action for violation of the ACFA.
26        Under the ACFA:
27             The act, use or employment by any person of any
          deception, deceptive or unfair act or practice, fraud,
28        false pretense, false promise, misrepresentation, or

                                     -16-
 1        concealment, suppression or omission of any material
          fact with intent that others rely on such concealment,
 2        suppression or omission, in connection with the sale or
          advertisement of any merchandise whether or not any
 3        person has in fact been misled, deceived or damaged
          thereby, is declared to be an unlawful practice.
 4
 5   ARS § 14-1522.
 6        To state a claim under the ACFA, a plaintiff must allege
 7   (1) a false promise or representation; (2) made in connection
 8   with the sale of merchandise; and (3) resulting and proximate
 9   injury.   Loomis v. U.S. Bank Home Mortg., 912 F. Supp. 2d 848,
10   856 (D. Ariz. 2012).   The claim must be pleaded with
11   particularity.    Id.; Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,
12   1103 (9th Cir. 2003) (noting that Rule 9(b)’s particularity
13   requirement applies to state law causes of action brought in
14   federal court).   Loan transactions constitute a sale within the
15   meaning of the ACFA, Loomis, 912 F. Supp. 2d at 856, and
16   “merchandise” includes services, ARS 44-1521(5); Haisch v.
17   Allstate Ins. Co., 5 P.3d 940, 944 (Ariz. Ct. App. 2000)
18        An omission of a material fact made with the intent that the
19   plaintiff rely on the omission is an unlawful practice under the
20   ACFA, Horne v. AutoZone, Inc., 275 P.3d 1278, 1281 (Ariz. 2012)
21   (en banc), but a failure to disclose may be fraudulent only if
22   the defendant had a duty to disclose.    Loomis, 912 F. Supp. 2d at
23   856-67.   The ACFA imposes an actionable duty “to refrain from a
24   deceptive act or practice or an omission of any material fact
25   with intent that others rely thereon.”   AutoZone, 275 P.3d at
26   1281 (citing ARS § 44-1522(A); internal quotations omitted).
27        Debtor alleged in the Complaint that:
28              68. Pursuant to the NMSA, Defendants were required

                                     -17-
 1        to stop foreclosure proceedings while a loan
          modification application was pending.
 2
               69. Defendant BoA acknowledges and advertises on
 3        their website . . . that they are required to suspend
          foreclosure activities under certain circumstances
 4        which would be similar to RAVAGO’[sic] circumstances.
 5             70. NATIONSTAR has stated to the Attorney Generals
          of Arizona and of California that they would comply
 6        with the National Mortgage Settlement Standards for any
          loans transferred to them by BoA.
 7
               71. Defendants intentionally made a
 8        misrepresentation in concealing the fact to RAVAGO that
          foreclosure proceedings would not be suspended pending
 9        a loan modification application.
10             72. Defendants’ actions were done by evil hands
          guided by evil minds.
11
               73. Defendants intended that others, including
12        RAVAGO, rely upon such misrepresentation and
          concealment of the fact that NATIONSTAR and/or
13        NATIONSTAR, LLC would comply with the NMSA standards.
14             74. RAVAGO suffered damages as a result of the
          reliance on Defendants’ misrepresentation and
15        concealment, in that she lost her home to foreclosure,
          and was required to expend time and funds in moving,
16        and other purposes[.]
17             75. RAVAGO has suffered other damages in an amount
          to be proven at trial.
18
19        The bankruptcy court dismissed this claim because the NMS
20   does not provide for a private right of action and thus does not
21   confer a duty to disclose, and because Debtor had alleged no
22   other source of a duty to disclose.   Debtor argues on appeal that
23   the ACFA itself imposes the duty, but the duty to refrain from
24   deceptive practices still requires a defendant to have breached a
25   duty to disclose in the first instance.   Here, Debtor conceded
26   she was in default and had notice of the trustee’s sale.    She did
27   not allege that she was promised that the foreclosure sale would
28   be stayed or cancelled.   Nor did she allege that she was aware of

                                    -18-
 1   the NMS or the representations on B of A’s website before the
 2   trustee’s sale, and her counsel conceded as much at oral
 3   argument.   Such allegations would be necessary to establish that
 4   the cited representations and concealment of the fact that the
 5   foreclosure was not suspended were the proximate cause of her
 6   damages.
 7        Finally, Debtor did not plead this claim with particularity,
 8   which requires that she allege all of the circumstances of the
 9   alleged fraud, “including the who, what, when, where and how of
10   the misconduct charged.”   Vess, 317 F.3d at 1106.   With respect
11   to B of A, Debtor alleged only that B of A has misleading
12   information on its website.   With respect to the Nationstar
13   Defendants, she alleged only that they represented to the
14   attorneys general of Arizona and California that they would
15   comply with the NMS for any loans transferred to them by B of A;
16   other than that, the allegations establish only that Nationstar
17   personnel were working with her on a loan modification without
18   mentioning the fact that the trustee’s sale was still going
19   forward.7
20   E.   The bankruptcy court did not err in dismissing the sixth
21        cause of action for tortious breach of duty of good faith
22        and fair dealing.
23        In Arizona, an implied covenant of good faith and fair
24
25        7
           On appeal, Debtor notes that lenders and servicers are now
26   prohibited under RESPA from continuing foreclosure proceedings
     while a loan modification is under consideration (with some
27   exceptions). 12 C.F.R. 1024.41(g). Even if this regulation
     would have applied to Debtor’s circumstances, it did not become
28   effective until January 10, 2014.

                                    -19-
 1   dealing is part of every contract.     Wells Fargo Bank v. Arizona
 2   Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust
 3   Fund, 38 P.3d 12, 28 (Ariz. 2002) (en banc), as corrected
 4   (Apr. 9, 2002).    “The implied covenant of good faith and fair
 5   dealing prohibits a party from doing anything to prevent other
 6   parties to the contract from receiving the benefits and
 7   entitlements of the agreement.”    Id.   A party may breach its duty
 8   of good faith and fair dealing without breaching an express term
 9   of the contract.    Snyder v. HSBC Bank, USA, N.A., 913 F. Supp. 2d
10   755, 772 (D. Ariz. 2012).
11        “A party may bring an action in tort claiming damages for
12   breach of the implied covenant of good faith, but only where
13   there is a special relationship between the parties arising from
14   elements of public interest, adhesion, and fiduciary
15   responsibility.”    Id. (citations and internal quotations
16   omitted).   Such relationships include common carrier and
17   passenger, innkeeper and guest, physician and patient, attorney
18   and client, and insurer and insured.     Rawlings v. Apodaca,
19   726 P.2d 565, 575 (Ariz. 1986) (en banc).
20        With respect to this cause of action, the Complaint alleged:
21             95. RAVAGO is, and at all times relevant to this
          complaint, a citizen of the State of Arizona, one of
22        the States those Defendants made promises through the
          NMSA to.
23
          . . . .
24
               97. Defendant BoA, as a signatory to the NMSA, has
25        placed the actions of servicing and owning mortgages
          and foreclosures in the public interest, in that they
26        made a public promise to refrain from certain practices
          with 49 Attorneys General suing BoA on behalf of the
27        people of those states.
28               98. Defendant NATIONSTAR AND NATIONSTAR, LLC have

                                     -20-
 1        placed the actions of servicing and owning mortgages in
          the public interest, as they have publically [sic]
 2        declared that they would comply with the NMSA for any
          loans transferred to it from BoA and are required to
 3        comply with the NMSA as a result of RAVAGO’s loan
          modification application status at the time of its
 4        acquisition of RAVAGO’s DOT.
 5             99. By ignoring the NMSA Article IV.B.6,
          preventing “dual tracking” by continuing with the
 6        Trustee’s sale after RAVAGO submitted her application
          to BoA and NATIONSTAR and/or NATIONSTAR, LLC,
 7        Defendants, and each of them, acted to impair the right
          of RAVAGO to receive the benefits of a fair loan
 8        modification application process.
 9             100. Defendant BoA had the power to suspend and
          cease foreclosure activities and did not do so while
10        processing RAVAGO’s loan modification application.
11             101. Defendant NATIONSTAR/NATIONSTAR, LLC had the
          power to suspend and cease foreclosure activities and
12        did not do so while processing RAVAGO’s loan
          modification application.
13
               102. BoA and NATIONSTAR and/or NATIONSTAR
14        intentionally ignored the duties required by the NMSA,
          and intentionally continued to pursue a Trustee’s sale
15        on PROPERTY.
16              103. BoA and NATIONSTAR and/or NATIONSTAR never
          intended to offer RAVAGO a loan modification at any
17        time.
18             104. Defendants’ actions were done by evil hands
          guided by evil minds.
19
               105. As a result of Defendants, and each of their,
20        actions, RAVAGO suffered damages in an amount to be
          proven at trial.
21
22        It is not clear from the Complaint what contract was at
23   issue.   In her opening brief, Debtor clarified that the relevant
24   contract was the agreement to consider a loan modification.    The
25   bankruptcy court dismissed this claim because Debtor did not
26   allege that Defendants had a contractual duty to offer or
27   consider a loan modification or that she had a right to a loan
28   modification pursuant to the deed of trust or other loan

                                    -21-
 1   documents.   On appeal, Debtor attempts to clarify her
 2   allegations, stating that she did not claim she was entitled to a
 3   loan modification, but that “the implied duty of good faith
 4   entitled her to fair treatment when Defendants agreed to consider
 5   her application.”   However, in the absence of an enforceable
 6   contract to offer or consider a loan modification, there can be
 7   no implied duty of good faith and fair dealing.    And because the
 8   NMS did not create a private right of action for a failure to
 9   stay foreclosure proceedings while a loan modification was being
10   considered, there is simply no legal basis for Debtor’s claim.
11        Moreover, to recover tort damages for a breach of the
12   implied covenant of good faith and fair dealing, there must be a
13   “special relationship” between the parties to the contract.     The
14   Complaint does not allege facts supporting a plausible inference
15   that there was a special relationship “arising from elements of
16   public interest, adhesion, and fiduciary responsibility.”    As a
17   matter of law, a lender and borrower are not fiduciaries (unless
18   the lender also provides financial advice upon which the borrower
19   relies).   McAlister v. Citibank (Ariz.), a Subsidiary of
20   Citicorp, 829 P.2d 1253, 1258 (Ariz. Ct. App. 1992).     Nor does a
21   difference in bargaining power alone establish a special
22   relationship for purposes of the implied convenant of good faith
23   and fair dealing.   Id.
24        The Complaint alleged that the public interest is implicated
25   because in the NMS the Defendants publicly promised that they
26   would not dual track.     However, because the NMS does not create a
27   private right of action, it cannot form the basis for a “special
28   relationship” between a lender and an individual borrower for

                                      -22-
 1   purposes of the implied covenant of good faith and fair dealing.
 2        Debtor cites Quintana v. Bank of Am., No. CV 11-2301-PHX,
 3   2014 WL 690906, at *6 (D. Ariz. Feb. 24, 2014), in which the
 4   U.S. District Court for the District of Arizona ruled that a
 5   plaintiff’s allegations that B of A represented that it would
 6   consider her for a modification but did not was sufficient to
 7   survive a motion to dismiss.   However, in that case, the question
 8   of whether a special relationship existed between the parties was
 9   not raised by the parties or analyzed by the court.   The court in
10   Quintana found the allegations of the complaint sufficient
11   because the note and deed of trust at issue allowed for
12   modifications, and plaintiff had alleged that B of A’s employees
13   represented to plaintiff that B of A would consider her
14   application for a loan modification, but B of A did not do so.
15   Accordingly, Quintana does not help Debtor.
16   F.   The bankruptcy court did not err in dismissing the seventh
17        cause of action for recording false documents under
18        ARS § 33-420.
19        Under ARS § 33-420(A),
20        A person purporting to claim an interest in, or a lien
          or encumbrance against, real property, who causes a
21        document asserting such claim to be recorded in the
          office of the county recorder, knowing or having reason
22        to know that the document is forged, groundless,
          contains a material misstatement or false claim or is
23        otherwise invalid is liable to the owner or beneficial
          title holder of the real property for the sum of not
24        less than five thousand dollars, or for treble the
          actual damages caused by the recording, whichever is
25        greater, and reasonable attorney fees and costs of the
          action.
26
27        To state a claim under this provision, the plaintiff must
28   allege (1) that the document is forged, groundless, contains a

                                    -23-
 1   misstatement or false claim or is otherwise invalid and (2) that
 2   the misstatement or false claim was material to her.   See Sitton
 3   v. Deutsche Bank Nat'l Trust Co., 311 P.3d 237, 243 (Ariz. Ct.
 4   App. 2013).
 5        The Complaint alleged, with respect to this cause of action:
 6             2. Defendants RECONTRUST, NATIONSTAR and/or
          NATIONSTAR LLC, and each of them, knew that they had no
 7        authority to record the Trustee’s Deed sequence number
          20132070170 at the Pima County Recorder, as they had
 8        not instituted the Trustee’s sale, had no authority
          under the NMSA, nor had any authority under Arizona
 9        agency law to complete the Trustee’s sale.
10             3. More than twenty days before the filing of this
          complaint RAVAGO has requested several times in writing
11        that RECONTRUST, NATIONSTAR and/or NATIONSTAR LLC
          correct its actions in allowing the Trustee’s Deed to
12        be effective by vacating its sale and the Trustee’s
          Deed. Defendants refused to take corrective action.
13
               4. As a result, RAVAGO has lost her home to a
14        false Trustee’s sale.
15        The bankruptcy court dismissed this claim because Debtor had
16   not alleged that the trustee’s sale was not conducted in
17   accordance with the procedures established under Arizona law for
18   trustee’s sales, ARS §§ 33-801 through 821.   Under those
19   statutes, any defense or objection to the sale is waived unless
20   raised before the sale occurs.    ARS § 33-811(C); BT Capital, LLC
21   v. TD Service Co. of Arizona, 275 P.3d 598, 600 (Ariz. 2012)
22   (en banc).    ARS § 33-811(C) provides:
23        The trustor, its successors or assigns, and all persons
          to whom the trustee mails a notice of a sale under a
24        trust deed pursuant to § 33-809 shall waive all
          defenses and objections to the sale not raised in an
25        action that results in the issuance of a court order
          granting relief pursuant to rule 65, Arizona rules of
26        civil procedure, entered before 5:00 p.m. mountain
          standard time on the last business day before the
27        scheduled date of the sale. A copy of the order, the
          application for the order and the complaint shall be
28        delivered to the trustee within twenty-four hours after

                                      -24-
 1        entering the order.
 2        On appeal, Debtor correctly points out that an action for
 3   damages under ARS § 33-420 is not necessarily waived by failure
 4   to object to the sale before it occurs.   “[F]ailure to enjoin a
 5   trustee’s sale does not waive claims for monetary awards under
 6   § 33–420(A).   Section 33–811(C) contemplates the waiver of
 7   ‘defenses and objections to the sale’ only, and nothing in
 8   § 33–420(A) provides a defense to a sale or makes recovery
 9   contingent upon a sale.”   Sitton, 311 P.3d at 240.   However,
10   where the plaintiff’s claim necessarily depends upon a
11   determination that the sale was improper, as it does here, the
12   trustee’s deed cannot be a false document.   Glava v. JPMorgan
13   Chase Bank, N.A., No. 1 CA-CV 13-0719, 2015 WL 849685, at *3
14   (Ariz. Ct. App. Feb. 26, 2015); see also Madison v. Groseth,
15   279 P.3d 633, 638 (Ariz. Ct. App. 2012) (holding that tort claims
16   based on an improper trustee’s sale were waived under
17   ARS § 33-811(C)).   The court in Glava distinguished Sitton:
18        Unlike Sitton, where the false recording claims were
          based upon alleged misstatements and other defects in
19        documents that existed irrespective of the subsequent
          trustee’s sale . . . , the complained of document in
20        this case only becomes false if the trustee's sale was
          improper. Therefore, the trial court properly found
21        that claim had been waived.
22   Glava, 2015 WL 849685, at *3.
23        As in Glava, Debtor’s underlying theory, as set forth in
24   paragraph 2 of the allegations relating to this cause of action,
25   and conceded in the bankruptcy court, is that the trustee’s sale
26   itself was invalid.   Accordingly, the bankruptcy court did not
27   err in dismissing this claim.
28        Debtor argues that the bankruptcy court erred because it

                                     -25-
 1   assumed that Debtor could have filed an objection to the sale
 2   before it was scheduled.     Debtor contends that she could not have
 3   known that Nationstar was the beneficiary under the deed of trust
 4   until the day before the sale when the assignment was recorded.
 5   The logic of this argument is difficult to discern and is
 6   inconsistent with allegations that ReconTrust had noticed the
 7   trustee’s sale in April 2013 and that Nationstar had notified
 8   Debtor that B of A had transferred the loan to it effective
 9   June 4, 2013.     Debtor also argues that if B of A had initially
10   authorized the trustee’s sale, the sale was invalid because at
11   the time of the sale B of A had no interest in the Property.
12   However, this argument is simply another attack on the validity
13   of the sale.    As such, it has been waived.
14   G.   Debtor has waived any argument that the bankruptcy court
15        abused its discretion in dismissing the Complaint with
16        prejudice.
17        In her pleadings in the bankruptcy court, Debtor asked the
18   court to permit her to amend the Complaint if Defendants’ motion
19   to dismiss was granted.     However, her counsel did not pursue that
20   argument at the hearing on the motion to dismiss, and the
21   bankruptcy court thereafter dismissed the second through seventh
22   causes of action with prejudice.     Although the bankruptcy court
23   did not make specific findings as to its reasons for denying
24   leave to amend, it did find that there was no authority to
25   support the proposition that the NMS could be a basis for a duty
26   of care.   Given that all of the dismissed causes of action were
27   premised upon alleged breaches of duties created by the NMS, it
28   appears that the bankruptcy court concluded that amendment would

                                      -26-
 1   be futile.
 2        On appeal, Debtor did not assign error to the bankruptcy
 3   court’s denial of leave to amend or propound any argument as to
 4   how the Complaint could be amended to state a cause of action.
 5   Therefore, the issue is waived.   See Meehan v. County of Los
 6   Angeles, 856 F.2d 102, 105 n.1 (9th Cir. 1988) (issue not briefed
 7   by a party is deemed waived); see also Jodoin v. Samayoa
 8   (In re Jodoin), 209 B.R. 132, 143 (9th Cir. BAP 1997) (Panel does
 9   not normally consider matters not specifically and distinctly
10   argued in appellant’s opening brief).
11                              CONCLUSION
12        For the reasons set forth above, the bankruptcy court had
13   authority to enter a final judgment in the adversary proceeding
14   and did not err in dismissing Debtor’s second, third, sixth and
15   seventh causes of action with prejudice.
16        Accordingly, we AFFIRM.
17
18
19
20
21
22
23
24
25
26
27
28

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