                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 16 2015

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



                            FOR THE NINTH CIRCUIT


HENRY J. TAPPER,                                 No. 12-16569

              Plaintiff - Appellant,             D.C. No. 2:11-cv-00088-ROS

 v.
                                                 MEMORANDUM*
DEUTSCHE BANK NATIONAL TRUST
COMPANY, its assignees and/or
successors-in-interest trustee of
Residential Asset Securitization Trust
2007-A7 Mortgage Pass-Through
Certificates Series 2007-G Under the
Pooling and Servicing Agreement Dated
5/1/07 and ONEWEST BANK, FSB, a
federally chartered savings bank,
individually and as successor-in-interest to
IndyMac Bank FSB successor in interest
IndyMac Bank FSB,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Roslyn O. Silver, Senior District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted June 8, 2015**
                            San Francisco, California

Before: SCHROEDER, D.W. NELSON, and CHRISTEN, Circuit Judges.

      Henry J. Tapper lost his home to foreclosure. He filed suit against Deutsche

Bank National Trust Company and OneWest Bank, FSB, challenging the trustee’s

sale. The district court dismissed Tapper’s claims under Federal Rule of Civil

Procedure 12(b)(6). Tapper timely appealed. We have jurisdiction under 28

U.S.C. § 1291. We review de novo the district court’s dismissal of Tapper’s

claims. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th

Cir. 2008). We affirm.

1.    The district court properly dismissed the breach of contract claim in the

amended complaint alleging violation of Treasury Department directives. Tapper

alleged that OneWest violated Treasury Department directives providing guidance

to mortgage loan servicers who contracted with the government to participate in

the Home Affordable Modification Program (HAMP). Even assuming OneWest

agreed to abide by the directives when it contracted with the government—a fact

Tapper’s amended complaint did not allege—the district court properly concluded

that Tapper lacks standing to bring this claim. See Astra USA, Inc. v. Santa Clara

       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Cnty., Cal., 131 S. Ct. 1342, 1347–48 (2011); Klamath Water Users Protective

Ass’n v. Patterson, 204 F.3d 1206, 1211 (9th Cir. 2000) (“Parties that benefit from

a government contract are generally assumed to be incidental beneficiaries, and

may not enforce the contract absent a clear intent to the contrary.”).

2.    The district court dismissed the claims in Tapper’s second amended

complaint for failure to comply with A.R.S. § 33-811(C). Each of the claims

challenged the validity of the trustee’s sale. Because Tapper did not file for

injunctive relief despite having notice of the trustee’s sale, he failed to comply with

the statutory prerequisite for challenging the foreclosure. See Ariz. Rev. Stat. § 33-

811(C); BT Capital, LLC v. TD Serv. Co. of Ariz., 275 P.3d 598, 600 (Ariz. 2012)

(en banc). To the extent Tapper argues that OneWest obligated itself to modify his

mortgage notwithstanding the Arizona statute, his claims for promissory estoppel

and breach of the implied covenant of good faith and fair dealing fail because he

did not show that OneWest promised to modify his loan. The information

worksheet and website printout attached to Tapper’s second amended complaint

provide that if a HAMP application is submitted less than 30 days prior to a

scheduled foreclosure sale, it must be sent via certified mail and received and

accepted at least seven days prior to the sale. Tapper’s second amended complaint

alleged his agent faxed (not mailed) application materials to OneWest, including


                                          3
some on July 2, 2010, less than seven days before the sale. It did not allege facts

establishing that his HAMP application was accepted by OneWest.

      AFFIRMED.




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