                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 18 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LAWRENCE BYBEE and THERESA                       No.   17-35883
BYBEE,
                                                 D.C. No. 6:14-cv-00064-CCL
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

BANK OF AMERICA, N.A.,

              Defendant-Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                    Charles C. Lovell, District Judge, Presiding

                            Submitted April 11, 2019**
                               Seattle, Washington

Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.

      Lawrence and Theresa Bybee appeal the district court’s grant of summary

judgment in favor of Bank of America, N.A. (BANA) on Mr. Bybee’s claims and



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
its order dismissing Mrs. Bybee’s claims for lack of standing. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.1

1.    BANA did not owe a legally cognizable duty to Mr. Bybee. In this diversity

jurisdiction case, Montana substantive law governs the Bybees’ claims. Cuprite

Mine Partners LLC v. Anderson, 809 F.3d 548, 554 (9th Cir. 2015). Under

Montana law, banks have no legal duty to renegotiate defaulted loans. See, e.g.,

Mont. Bank of Circle, N.A. v. Ralph Meyers & Son, Inc., 769 P.2d 1208, 1213

(Mont. 1989). However, a bank may take on “the role of an advisor, thereby

creating a relationship of trust and confidence[.]” Morrow v. Bank of Am., N.A.,

324 P.3d 1167, 1177 (Mont. 2014) (quoting Deist v. Wachholz, 678 P.2d 188, 193

(Mont. 1984)). In such circumstances, where a bank “gives advice ‘other than that

common in the usual arms-length debtor/creditor relationship[,]’” a fiduciary

obligation to its customer may arise. Id. (quoting Coles Dep’t Store v. First Bank,

N.A., 783 P.2d 932, 934 (Mont. 1989)).

      On de novo review, we conclude that the undisputed evidence, taken in the

light most favorable to Mr. Bybee, demonstrates that BANA did not establish a

fiduciary relationship with him sufficient to create a legal duty. We discern no



      1
            Because the parties are familiar with the facts and arguments on
appeal, we do not recite them here.
                                          2
indication that the bank told the Bybees “not to repay a loan, to pay less than the

amount required by the loan documents, or to ignore notices of impending

foreclosure and avoid curing a default[,]” conduct that the Montana Supreme Court

has described as exceeding “the usual arms-length debtor/creditor relationship.”

Id. at 1178. At best, the facts demonstrate that the Bybees were in a fiduciary

relationship with their prior mortgage servicer, but those claims are barred by the

statute of limitations. See Mont. Code Ann. § 27-2-204 (2019).2

      Because Mr. Bybee cannot, as a matter of law, establish that BANA owed

him a duty as a fiduciary, his negligence claims fail. See Hatch v. State Dep’t of

Highways, 887 P.2d 729, 732 (Mont. 1994) (reciting elements of negligence cause

of action).

2.    BANA did not violate the Montana Consumer Protection Act. Claims

brought pursuant to the MCPA are subject to a two-year statute of limitations. See

Osterman v. Sears, Roebuck & Co., 80 P.3d 435, 441 (Mont. 2003). Accordingly,

the district court properly granted summary judgment on all of Mr. Bybee’s claims

that arose prior to June 28, 2011.


      2
             We are not persuaded by the Bybees’ argument that BANA is subject
to successor liability. Moreover, that theory was not included in their fourth
amended complaint and cannot, therefore, serve as a basis for resisting summary
judgment. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir.
2008) (en banc).
                                          3
      The remaining timely MCPA claim against BANA in the fourth amended

complaint is aimed at two foreclosure notices sent in 2012 that BANA

subsequently canceled. Following the Montana Supreme Court’s construction of

an unfair or deceptive practice for purposes of the statue, we conclude that the

bank’s decision to cancel planned foreclosures—thereby allowing the Bybees to

remain in their home—does not amount to an “immoral, unethical, oppressive, or

unscrupulous” business tactic. See Rohrer v. Knudson, 203 P.3d 759, 763 (Mont.

2009) (quoting FTC v. Sperry & Hutchinson Co. (S & H), 405 U.S. 223, 244 n.5

(1972)). To the extent Mr. Bybee contends the bank’s failure to accept his monthly

payments after his loan entered default constitutes a violation of the statute, those

claims were not presented in his complaint and we decline to consider them. See

Navajo Nation, 535 F.3d at 1080.

3.    The district court dismissed Mrs. Bybee’s claim for lack of standing, but we

may affirm on any basis supported by the record. See, e.g., E. V. v. Robinson, 906

F.3d 1082, 1090 (9th Cir. 2018). Because Mrs. Bybee’s causes of action are co-

extensive with her husband’s, even if she had standing to sue her claims fail on the

merits.

      AFFIRMED.




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