                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JUL 19 2017
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RICHARD DAHNKEN,                                 No.   14-15424

               Plaintiff-Appellant,              D.C. No. 4:13-cv-02838-PJH

 v.

WELLS FARGO BANK, NA, Trustee of                 MEMORANDUM*
Wamu Mortgage Pass-Through
Certificates, Series 2005-PR4;
JPMORGAN CHASE BANK, N.A.;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,

               Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                           Submitted February 15, 2017**
                             San Francisco, California




      *
             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).
Before: GOULD and BERZON, Circuit Judges and GARBIS,*** District Judge.

      In 2005, Appellant Richard Dahnken (“Dahnken”) obtained a $346,000

home loan, evidenced by a promissory note and secured by a deed of trust recorded

against the property. Mortgage Electronic Registration Systems, Inc. (“MERS”)

was designated the nominee for the lender and its successors and assigns,

beneficiary of the deed of trust, and holder of legal title to the loan. Through a

series of assignments, the loan was securitized into a mortgage-backed securities

pool that qualified as a Real Estate Mortgage Investment Conduit (“REMIC”) in

accordance with the Internal Revenue Code. JPMorgan Chase Bank (“Chase”)

ultimately became the servicer for the loan.

      Dahnken stopped making payments on the loan beginning September 2008.

Before a scheduled foreclosure sale, he filed this lawsuit in June 2013, asserting

ten causes of action against Chase, MERS, and Wells Fargo Bank, NA (“Wells

Fargo”) as trustee of the securities trust. The district court dismissed Dahnken’s

amended complaint with prejudice. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      1. The district court did not err in dismissing Dahnken’s wrongful

foreclosure claim for failing to state a claim under Federal Rule of Civil Procedure

       ***
             The Honorable Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
                                           2
12(b)(6). Dahnken alleged that none of the named Defendants had standing to

enforce his mortgage loan because of failures with the assignments.

      First, Dahnken’s challenges to MERS’ assignments have no merit. MERS

was acting as the lender’s nominee when it assigned the interest in the deed of

trust, so the assignment was valid. See Fontenot v. Wells Fargo Bank, N.A., 129

Cal. Rptr. 3d 467, 479-80 (Ct. App. 2011) (disapproved of on other grounds by

Yvanova v. New Century Mortg. Corp., 365 P.3d 845, 859 n.13 (Cal. 2016)).

Further, even if MERS lacked authority to transfer the note, the assignment merely

substituted one creditor for another and did not change Dahnken’s obligations, so

Dahnken cannot show the prejudice necessary to challenge foreclosure. Id. at 481.

      Dahnken also argued that the attempted securitization failed because the

assignment to Wells Fargo was after the closing date of the trust. The weight of

authority now holds that an untimely assignment to a securitized trust, made after

the securitized trust’s closing date, is not void but merely voidable. See, e.g.,

Turner v. Wells Fargo Bank NA, --- F.3d ----, No. 15-60046, 2017 WL 2587981, at

*3 (9th Cir. June 15, 2017).

      Finally, Dahnken’s allegation that the assignment was robo-signed does not

result in a void assignment. An unauthorized signature is subject to ratification, so




                                           3
the assignment would therefore, be voidable, not void. Cal. Com. Code § 3403(a);

Mendoza, 212 Cal. Rptr. 3d at 14.

      Under California law, a borrower cannot bring an action challenging the

assignment of a loan or deed of trust from one lender or loan-servicer to another

unless that assignment was void rather than merely voidable. Turner, 2017 WL

2587981, at *3 (citing Yvanova, 365 P.3d at 861). Therefore, Dahnken lacked the

authority to challenge the assignments, and his claim for wrongful disclosure fails.

      2. Dahnken’s claims for quiet title and restitution similarly fail. Dahnken

did not plausibly allege superior title in his property over Chase and Wells Fargo.

Nor did Dahnken allege that he had paid his debt, which is a necessary

prerequisite to quiet title to the property. Lueras v. BAC Home Loans Servicing,

LP, 163 Cal. Rptr. 3d 804, 835-36 (Ct. App. 2013). Also, Dahnken made no

plausible allegation of any payments he made not being properly credited to the

loan or unjustly enriching Chase or Wells Fargo. Dunkin v. Boskey, 98 Cal. Rptr.

2d 44, 62–63 (Ct. App. 2000).

      3. The district court did not err in dismissing Dahnken’s claims of

California Civil Code violations. Dahnken alleged that defendants violated Cal.

Civ. Code § 2924.17 based on a Notice of Trustee’s Sale that was issued by the

trustee on behalf of Wells Fargo. Section 2924.17 applies to a mortgage servicer,


                                          4
which is defined in § 2920.5 to specifically exclude a trustee. Dahnken’s claims

against defendants are, therefore, inapplicable, since the notice was issued by the

trustee, not by defendants.

      Dahnken also alleged a violation of Cal. Civ. Code § 2934a(a)(1)(A) based

on Chase not having the power to substitute a trustee. As discussed above,

Dahnken’s allegations with regard to the validity of MERS assignments have no

merit. Further, Chase recorded the substitution of trustee, so the Civil Code’s

procedural requirements were satisfied. See Cal. Civ. Code § 2934a(d) (recorded

substitution of trustee constitutes conclusive evidence of the authority of the

substituted trustee).

      4. Dahnken did not raise any legal argument challenging the district court’s

ruling denying him leave to file a second amended complaint, so Dahnken failed to

preserve the issue for appeal. See D.A.R.E. Am. v. Rolling Stone Magazine, 270

F.3d 793, 793 (9th Cir. 2001) (“A bare assertion of an issue does not preserve a

claim, particularly when, as here, a host of other issues are presented for review.”

(citations omitted)). Further, after a previous opportunity to amend, Dahnken

failed to cure the complaint’s defects, and there is no showing that further

amendment would be successful.

      AFFIRMED.


                                           5
