                                                                             FILED
                            NOT FOR PUBLICATION                               APR 06 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RONALD M. GUTIERREZ, on behalf of                 No. 12-17271
himself and all others similarly situated,
                                                  D.C. No. 3:12-cv-01135-SI
              Plaintiff - Appellant,

  v.                                              MEMORANDUM*

WELLS FARGO BANK, NA, DBA Wells
Fargo Home Mortgage, Inc. And WELLS
FARGO REAL ESTATE TAX
SERVICES, LLC,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Susan Illston, Senior District Judge, Presiding

                     Argued and Submitted December 12, 2014
                             San Francisco, California

Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.

       Ronald Gutierrez appeals the district court’s dismissal of his action for

failure to state a claim. His claims turn on language contained in a Settlement Cost



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Booklet mandated by Department of Housing and Urban Development regulations

and provided to him by Wells Fargo. The facts are known to the parties and will

not be repeated here.

      The district court did not err when it concluded that Gutierrez failed to allege

adequately that Wells Fargo’s practices were contrary to the Booklet’s language.

The Booklet provides that the tax service fee “covers the cost of your lender

engaging a third party to monitor and handle the payment of your property tax

bills.” It explains that “[t]his is done to ensure that your tax payments are made on

time and to prevent tax liens from occurring.” It also states that the tax service fee

is “paid to a tax service provider for information on the real estate property tax.”

Gutierrez urges that Wells Fargo did not actually provide tax services because he

paid his own property taxes in lieu of Wells Fargo maintaining an escrow account

to pay those taxes.

      Gutierrez’s allegations regarding Wells Fargo’s business practices do not

plausibly state a claim for relief. Gutierrez does not dispute that Wells Fargo

monitors tax payments by borrowers who do not have escrow accounts to ensure

that property tax payments are made on time and to prevent liens from occurring.

His only contention is that Wells Fargo is required to do more than monitoring and

verification if the services it provides are to be considered a “tax service.” We

                                           2
conclude that the district court did not err when it held that Wells Fargo’s practices

are consistent with the Settlement Cost Booklet’s unambiguous definition of the

tax service fee.1

      Because all of Gutierrez’s claims turn on the construction of the Settlement

Cost Booklet and he has not adequately alleged that Wells Fargo’s practices

contravene the language of the Settlement Cost Booklet, the district court properly

dismissed his claims. See Freeman v. Time, Inc., 68 F.3d 285, 290 (9th Cir. 1995)

(affirming dismissal of Unfair Competition Law and related claims where plaintiff

failed to show documents provided to him were untrue or misleading).

      AFFIRMED.




      1
        Wells Fargo’s request in its brief that the court take judicial notice of
Gutierrez’s deed of trust and its Motion for Judicial Notice requesting the court
take judicial notice of an excerpt from Freddie Mac’s Family Servicing Guidelines
are hereby denied as moot.

                                           3
                                                                               FILED
Gutierrez v. Wells Fargo, No. 12-17271                                         APR 06 2015

                                                                          MOLLY C. DWYER, CLERK
N.R. SMITH, Circuit Judge, concurring in the judgment:                     U.S. COURT OF APPEALS



      On appeal, when reviewing a district court’s order granting a motion to

dismiss, all allegations of material fact in the complaint must be taken as true and

construed in the light most favorable to the nonmoving party. See Knievel v.

ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). In his complaint, Gutierrez alleged

that the definition of “tax service fee” in the Settlement Cost Booklet did not

permit Wells Fargo to charge him a fee connected to the payment of property

taxes. In its motion to dismiss, Wells Fargo asserted that its practices complied

with its interpretation of the definition of “tax service fee.”

      In making its decision, the majority improperly accepts Wells Fargo’s

arguments and declares that Wells Fargo has acted in accordance with its

interpretations of whatever obligations the “tax service fee” provision imposes

upon it. It cites no precedent defining the term “tax service fee.” It engages in no

statutory construction of alleged statues or regulations nor any interpretation of

alleged contractual terms. On this limited record and considering our role at the

motion to dismiss phase, the majority offers no reason that Wells Fargo’s

interpretation of the Settlement Cost Booklet is correct as a matter of law.

Applying the standard of review for a motion to dismiss, Gutierrez’s interpretation

is more than equally plausible.
      The district court took the reasoned approach to the resolution of this case.

Gutierrez cites no authority for the proposition that the Settlement Cost Booklet

controls Wells Fargo’s conduct. Gutierrez has never articulated a legal theory as to

why Wells Fargo’s practices must comply with the definition of “tax service fee”

in the Settlement Cost Booklet. Gutierrez abandoned his breach of contract claim

on appeal, so he cannot argue that the Settlement Cost Booklet became part of his

contract with Wells Fargo. Gutierrez has not alleged that Wells Fargo’s conduct

was illegal. Instead, Gutierrez’s complaint assumes that the Settlement Cost

Booklet is legally binding on Wells Fargo, as if it were a binding regulation of the

Real Estate Settlement Procedures Act. However, the Act’s governing regulations

specifically disclaim any regulatory role for the Settlement Cost Booklet. See 24

C.F.R. § 3500.4(a)(2) (stating the regulations under the governing statute “shall not

include the special information booklet prescribed by the Secretary”).1 Therefore,

Gutierrez failed to state a plausible claim for relief, and the district court did not err

when it dismissed Gutierrez’s complaint.




      1
          This provision has since been recodified at 12 C.F.R. § 1024.4.
