                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 23 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GEORGE M. KRAMER,                                No.   14-15973

              Plaintiff-Appellant,               D.C. No.
                                                 1:13-cv-01499-AWI-MJS
 v.

QUALITY LOAN SERVICING                           MEMORANDUM*
CORPORATION; BANK OF AMERICA,
N.A., Successor by Merger to BAC Home
Loans Servicing, LP, fka Countrywide
Home Loans Servicing, LP; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC.; FEDERAL HOME
LOAN MORTGAGE CORPORATION;
DOES, 1-10, inclusive,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                      Argued and Submitted October 21, 2016
                            San Francisco, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: HAWKINS and CALLAHAN, Circuit Judges, and SOTO,** District
Judge.

       Plaintiff-Appellant George Kramer appeals from the district court’s order

dismissing his complaint without leave to amend pursuant to Federal Rule of Civil

Procedure 12(b)(6) in favor of Defendants-Appellees Bank of America, Quality

Loan Service Corporation (QLSC), Mortgage Electronic Registration Systems, Inc.

(MERS), and Federal Home Loan Mortgage Corporation (Freddie Mac). We have

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

       1.     It is unnecessary to decide whether Kramer has standing to challenge

the alleged violation of the terms of the Pooling & Servicing Agreement governing

the Freddie Mac Multiclass certificates REMIC Series 3201 Trust (“Freddie Mac

Trust”) under Yvanova v. New Century Mortgage Corp., 62 Cal. 4th 919 (2016).

The violation that Kramer claims —that the Note was transferred into the Freddie

Mac Trust but the Deed of Trust was not —cannot have occurred under California

law. Id. at 927 (reiterating that a “deed of trust . . . is inseparable from the note it

secures, and follows it even without a separate assignment”).

       2.     None of Kramer’s challenges to MERS’s assignment of the Note and

Deed of Trust to Bank of America, or Bank of America’s substitution of QLSC as


       **
             The Honorable James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.
                                             2
trustee, have merit. First, MERS was acting as the lender’s nominee when it

assigned the Note and Deed of Trust to Bank of America, and thus its lack of

possessory interest does not render this assignment invalid. Fontenot v. Wells

Fargo Bank, N.A., 198 Cal. App. 4th 256, 270 (2011), disapproved of on other

grounds by Yvanova, 62 Cal. 4th at 939 n.13. The Deed of Trust sufficiently

establishes MERS’s authority to take such action on behalf of the lender, and

Kramer’s allegations do not support an inference that additional authorization from

the lender was required. See id. at 270–71.

      Second, while Kramer contends MERS’s assignment to Bank of America is

void because it was robo-signed by Renee Rosales, Kramer’s allegations, taken as

true, do not support an inference that Rosales lacked authority from MERS to make

this assignment on its behalf or was not validly acting as MERS’s agent when she

signed this document. Moreover, even assuming that this assignment was

“robo-signed,” forged, or otherwise unauthorized, it is subject to ratification. Cal.

Com. Code § 3403(a); Common Wealth Ins. Sys., Inc. v. Kersten, 40 Cal. App. 3d

1014, 1025–26 (1974). This assignment is therefore voidable, not void, and

Kramer lacks standing to challenge it. See Yvanova, 62 Cal. 4th at 936; Saterbak v.

JPMorgan Chase Bank, N.A., 245 Cal. App. 4th 808, 813–15 (2016), reh’g denied

(Apr. 11, 2016), review denied (July 13, 2016).


                                           3
      Third, under California law, assignments of the Note need not be recorded.

Yvanova, 62 Cal. 4th at 927. Accordingly, the fact that the Note was allegedly

transferred to Freddie Mac without being recorded does not indicate any

impropriety.

      Fourth, if the Note (and thus the Deed of Trust) was transferred to Freddie

Mac in 2006, making the assignments from Aegis Wholesale, Aegis Mortgage,

Countrywide Bank, and Countrywide Home Loans void ab initio, it does not

follow that MERS’s assignment of the Note and Deed of Trust to Bank of America

in 2012 was also void. Kramer’s allegations in no way suggest MERS lacked

authority from Freddie Mac to assign the Note and the Deed of Trust to Bank of

America in 2012. Thus, even assuming that the assignments recorded on the

allonges are void because the Note was transferred to Freddie Mac in 2006, this

theory does not support a claim for relief.

      3.       Kramer’s allegations do not support his contention that Appellees

lacked authority to foreclose, that the underlying debt was invalid, or that any other

exception to the tender rule applies. See Robinson v. Am. Home Mortg. Servicing,

Inc. (In re Mortg. Elec. Registration Sys., Inc.), 754 F.3d 772, 785 (9th Cir. 2014).

Kramer was therefore required to adequately allege tender to successfully bring his

claims for wrongful foreclosure, id. at 784, quiet title, Shimpones v. Stickney,


                                              4
219 Cal. 637, 649 (1934), and cancellation of instruments, Arnolds Mgmt. Corp. v.

Eischen, 158 Cal. App. 3d 575, 580 (1984). His allegations regarding his

willingness to tender are insufficient, Arnolds Mgmt. Corp., 158 Cal. App. 3d

at 580, and the district court properly dismissed these claims.

      4.     Assuming, without deciding, that Bank of America and QLSC owed

Kramer a duty of care once he requested a loan modification, see Alvarez v. BAC

Home Loans Servicing, L.P., 228 Cal. App. 4th 941, 948 (2014), Kramer’s

allegations do not support an inference that either Bank of America or QLSC

breached that duty. The district court therefore properly dismissed Kramer’s claim

for negligence.

      5.     Kramer’s claim for an accounting was also properly dismissed.

Kramer does not have a fiduciary relationship with any Appellee because “[t]he

relationship between a lending institution and its borrower-client is not fiduciary in

nature.” Nymark v. Heart Fed. Sav. & Loan Ass’n, 231 Cal. App. 3d 1089, 1093

n.1 (1991). Further, based on the language of the Note itself, Kramer has no

plausible claim that any Appellee owes him money, or that he did not need to make

payments, as a result of the securitization of the Note. Kramer therefore failed to

state a claim for accounting. Teselle v. McLoughlin, 173 Cal. App. 4th 156,

179–80 (2009).


                                           5
      6.     Kramer argues that Appellees violated California’s Unfair

Competition Law (UCL) by executing and recording false and misleading

documents, executing and recording documents without the legal authority to do

so, demanding and accepting payments for debts that were non-existent, reporting

payments as late to credit bureaus without the right to do so, and acting as a

beneficiary without the legal authority to do so. Kramer also contends that

Appellees violated the UCL by failing to transfer the Deed of Trust into Freddie

Mac Trust. We need not decide whether Kramer has standing to bring a claim

based on these alleged violations because these contentions lack legal and factual

support and fail to adequately state a claim for a UCL violation under any of the

tests employed in California. Davis v. Ford Motor Credit Co., 179 Cal. App. 4th

581, 595–97 (2009) (discussing the three tests employed by California courts).

      AFFIRMED.




                                          6
