                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 14 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BARBARA NURCZEWSKA,                              No. 12-55309

              Plaintiff - Appellant,             D.C. No. 5:11-cv-01668-RGK-SP

  v.
                                                 MEMORANDUM *
FEDERAL HOME LOAN MORTGAGE
CORPORATION; JPMORGAN CHASE
BANK,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                        Argued and Submitted June 5, 2013
                              Pasadena, California

Before: TROTT and W. FLETCHER, Circuit Judges, and STEIN, District Judge.**

       Plaintiff-Appellant Barbara Nurczewska appeals the dismissal of her first




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
amended complaint without leave to amend. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      Nurczewska’s argument to set aside the foreclosure sale based upon

California’s deed-of-trust statutes is misplaced. An agreement between the lender

and a non-trustor third party, like Nurczewska, does not void the sale. See Nguyen

v. Calhoun,129 Cal. Rptr. 2d 436, 450 (Cal. Ct. App. 2003) (holding that a “non-

statutory postponement . . . does not constitute an irregularity in the foreclosure

proceeding itself” that could justify setting aside a foreclosure sale).

      Nurczewska’s breach of contract claim fails for lack of consideration.

Consideration requires a bargained for detriment or benefit. Steiner v. Thexton,

226 P.3d 359, 366 (Cal. 2010). None of Nurczewska’s actions was taken at

Appellees’ request. Therefore, they are not consideration for the oral promise to

postpone the foreclosure sale.

      While the fact that Nurczewska’s reliance on Freddie Mac’s promise to

postpone the foreclosure sale may support a standalone claim for promissory

estoppel, it does not save Nurczewska’s contract claim. The California Supreme

Court “repeatedly has recognized the claims not only as distinct or alternative

theories of recovery but also as mutually exclusive.” Douglas E. Barnhart, Inc. v.

CMC Fabricators, Inc., 149 Cal. Rptr. 3d 440, 450 (Cal. Ct. App. 2013); see also


                                            2
id. (collecting cases distinguishing between the two causes of action). However,

at oral argument Nurczewska’s counsel expressly disclaimed any intent to amend

the complaint to include a claim for promissory estoppel.

         Nurczewska’s fraud claim fails because she did not suffer any “out-of-

pocket” damages. See Fragale v. Faulkner, 1 Cal. Rptr. 3d 616, 622 (Cal. Ct. App.

2003).

         Nurczewska’s negligence claim fails because Freddie Mac did not owe

Nurczewska a duty of care. Unless a financial institution steps out of its traditional

role as a lender, it does not owe a duty of care to a borrower. See, e.g., Nymark v.

Heart Fed. Savings & Loan Ass’n, 283 Cal. Rptr. 53, 59 (Cal. Ct. App. 1991).

Given that Freddie Mac owed no duty to the actual homeowners in considering

whether to forego its rights as a lender, we believe it stands a fortiori that it did not

owe a duty to a prospective purchaser. Nurczewska’s reliance on U.S. Liability

Insurance Co. v. Haidinger-Hayes, 463 P.2d 770 (1970), is unpersuasive because

Freddie Mac is not her fiduciary.

         According to counsel, Nurczewska’s requests for a declaratory judgment and

to reinstate the lis pendens are now moot. Therefore, we do not address these

arguments.




                                            3
      Finally, the district court properly dismissed Nurczewska’s complaint

without leave to amend. Apart from failing to present her proposed amendments to

the district court, we have considered Nurczewska’s proposed amendments and

conclude that they lack merit.

      AFFIRMED.




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