                                                              FILED
                                                               DEC 23 2014
 1                          NOT FOR PUBLICATION
                                                           SUSAN M. SPRAUL, CLERK
 2                                                           U.S. BKCY. APP. PANEL
                                                             OF THE NINTH CIRCUIT

 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                          )     BAP No.      CC-13-1505-KuPaTa
                                     )
 6   VICTOR ORLANDO RIVERA,          )     Bk. No.      13-14646
                                     )
 7                       Debtor.     )     Adv. No.     13-01650
     ________________________________)
 8                                   )
     VICTOR ORLANDO RIVERA,          )
 9                                   )
                         Appellant, )
10                                   )
     v.                              )     MEMORANDUM*
11                                   )
     MORTGAGE ELECTRONIC REGISTRATION)
12   SYSTEMS, INC.; OCWEN LOAN       )
     SERVICING, LLC; WELLS FARGO     )
13   BANK N.A., Trustee for Soundview)
     Home Loan Trust 2007-OPT1,      )
14   Asset-Backed Certificates,      )
     Series 2007-OPT1,               )
15                                   )
                         Appellees. )
16   ________________________________)
17                  Argued and Submitted on November 20, 2014
                            at Los Angeles, California
18
                            Filed – December 23, 2014
19
              Appeal from the United States Bankruptcy Court
20                for the Central District of California
21        Honorable Vincent Zurzolo, Bankruptcy Judge, Presiding
22
     Appearances:      Appellant Victor Orlando Rivera argued pro se;
23                     Robert W. Norman, Jr. of Houser & Allison, APC,
                       argued for appellees Ocwen Loan Servicing, LLC and
24                     Wells Fargo Bank N.A., as Trustee for Soundview
                       Home Loan Trust 2007-OPT1, Asset-Backed
25
26        *
           This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8013-1.
 1                   Certificates, Series 2007-OPT1; Stefan Perovich of
                     Keesal, Young & Logan argued for appellee Mortgage
 2                   Electronic Registration Systems, Inc.
 3
 4   Before: KURTZ, PAPPAS and TAYLOR, Bankruptcy Judges.
 5
 6                              INTRODUCTION
 7        Debtor Victor Orlando Rivera filed a chapter 131 bankruptcy
 8   case and an adversary proceeding seeking to derail nonjudicial
 9   foreclosure proceedings pending against his residence.     Rivera’s
10   complaint identified the defendants, including Wells Fargo
11   Bank N.A. as trustee for a mortgage securitization trust, as the
12   parties responsible for the foreclosure proceedings.   In support
13   of his challenge to the foreclosure proceedings, Rivera alleged
14   that Wells Fargo and its agents were not legally entitled to
15   foreclose.   According to Rivera, Wells Fargo’s asserted
16   foreclosure rights were based on an invalid assignment of a deed
17   of trust.
18        With certain exceptions not applicable here, California law
19   does not permit a borrower in default to challenge pending
20   nonjudicial foreclosure proceedings by seeking an advance
21   judicial determination of the foreclosing party’s right to
22   foreclose.   Accordingly, we AFFIRM the bankruptcy court’s Civil
23   Rule 12(b)(6) dismissal of Rivera’s adversary proceeding.
24
25
          1
26         Unless specified otherwise, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
27   all "Rule" references are to the Federal Rules of Bankruptcy
     Procedure, Rules 1001-9037. All “Civil Rule” references are to
28   the Federal Rules of Civil Procedure.

                                      2
 1                                  FACTS
 2        Rivera refinanced his home in Los Angeles, California in
 3   February 2007 by executing a $875,000 note and a deed of trust in
 4   favor of Option One Mortgage Corporation.       Option One thereafter
 5   conveyed its rights as beneficiary under the deed of trust to
 6   Wells Fargo, as the trustee for a mortgage securitization trust.
 7   This conveyance is documented by an assignment of deed of trust
 8   dated December 27, 2007, and recorded in the Official Records of
 9   Los Angeles County on February 22, 2008.
10        Rivera’s complaint did not dispute that he had fallen behind
11   on his loan payments and that he was in default on the loan.          In
12   fact, at oral argument, Rivera confirmed that, after his 2007
13   refinancing, he made only two or three monthly loan payments and
14   that he has not made any loan payments for roughly the last seven
15   years.   Based on his default, Rivera indicates, Wells Fargo and
16   its agents caused nonjudicial foreclosure proceedings to be
17   commenced against his residence.       In furtherance of these
18   proceedings, Rivera alleges, Wells Fargo or its agents recorded a
19   notice of default, a substitution of trustee, a notice of
20   trustee’s sale and other documents.       Rivera did not attach copies
21   of these foreclosure documents as exhibits to his complaint, but
22   they are referenced therein and are attached to other adversary
23   proceeding filings.
24        The complaint, which Rivera filed pro se, is difficult to
25   understand as a whole.   At times, it is incomprehensible.       It
26   contains no distinct claims for relief, but instead generally
27   relies on phrases irregularly disbursed throughout the body of
28   the document – phrases like “declaratory relief,” “quiet title,”

                                        3
 1   “fraud table,” and “Robbo [sic] Signature.”   Even so, the
 2   complaint in essence alleged that the foreclosure documents
 3   should be set aside and the defendants enjoined from further
 4   pursuing foreclosure because the assignment of the deed of trust
 5   to Wells Fargo was invalid and, hence, Wells Fargo and its agents
 6   had no right to foreclose.2
 7        Several of the defendants filed motions to dismiss Rivera’s
 8   complaint.   Among other things, the defendants pointed out that
 9   California law generally permits nonjudicial foreclosures to
10   proceed without requiring the foreclosing party to first prove in
11   a judicial action that they are entitled to foreclose.
12        At the hearing on the dismissal motions, Rivera confirmed
13   that his complaint sought to attack the foreclosure proceedings
14   by challenging the right of Wells Fargo and its agents to
15   foreclose:
16        THE COURT: . . . it seems that Mr. Rivera is attempting
          to challenge a foreclosure sale and he is asserting
17        that somehow the Defendants involved in this motion to
          dismiss, Ocwen Loan Servicing and Wells Fargo Bank, are
18        not -- do not have the legal authority to conduct the
          foreclosure sale.
19
          MR. RIVERA: Exactly.
20
21   Hr’g Tr. (Sept. 26, 2013) at 7:14-19.
22
23
          2
           On appeal, Rivera apparently claims that his loan
24   obligations were somehow satisfied, and he points to two
     documents entitled “Full Reconveyance” as supporting his claim.
25   However, the reconveyance documents on which Rivera relies, one
26   dated in 2006 and the other dated in 2007 do not reflect the
     satisfaction of the secured loan that is the subject of the
27   foreclosure proceedings Rivera currently is challenging. Rather,
     the reconveyance documents indicate that Rivera paid off prior
28   secured loans by refinancing his home.

                                      4
 1        In ruling on the dismissal motions, the bankruptcy court in
 2   relevant part adopted the defendants’ argument that California
 3   law generally does not permit borrowers to challenge nonjudicial
 4   foreclosure proceedings by seeking an advance judicial
 5   determination of the foreclosing party’s right to foreclose.
 6        The bankruptcy court also expressed concern that Rivera’s
 7   bankruptcy case appeared to suffer from numerous serious
 8   deficiencies and that Rivera appeared to have filed bankruptcy
 9   solely for the purpose of filing an adversary proceeding
10   challenging the foreclosure proceedings.
11        Based on these circumstances, the bankruptcy court entered
12   an order on October 24, 2013, dismissing Rivera’s complaint
13   without leave to amend and dismissing the entire adversary
14   proceeding with prejudice.    Rivera timely filed a notice of
15   appeal.
16                                JURISDICTION
17        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
18   §§ 1334 and 157(b)(2)(A) and (O).     We have jurisdiction under
19   28 U.S.C. § 158.
20                                   ISSUE
21        Did the bankruptcy court err when it dismissed the claims
22   for relief stated in Rivera’s first amended complaint?
23                           STANDARD OF REVIEW
24        We review de novo the bankruptcy court's Civil Rule 12(b)(6)
25   dismissal.   Barnes v. Belice (In re Belice), 461 B.R. 564, 572
26   (9th Cir. BAP 2011).
27      CIVIL RULE 12(b)(6) STANDARDS AND JUDICIAL NOTICE STANDARDS
28        When we review a matter de novo, we consider the matter anew

                                       5
 1   as if the bankruptcy court had not previously ruled.    Sachan v.
 2   Huh (In re Huh), 506 B.R. 257, 262 (9th Cir. BAP 2014) (en banc).
 3   Therefore, we apply the same standards to Civil Rule 12(b)(6)
 4   dismissal motions that all other federal courts are required to
 5   apply.   In re Belice, 461 B.R. at 572-73.
 6        Under Civil Rule 12(b)(6), made applicable in adversary
 7   proceedings by Rule 7012, we may dismiss a complaint for
 8   “failure to state a claim upon which relief can be granted.”
 9   To survive a Civil Rule 12(b)(6) dismissal motion, a complaint
10   must present cognizable legal theories and sufficient factual
11   allegations to support those theories.   See Johnson v. Riverside
12   Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008).      As
13   the Supreme Court has explained:
14        a complaint must contain sufficient factual matter,
          accepted as true, to state a claim to relief that is
15        plausible on its face. . . . A claim has facial
          plausibility when the plaintiff pleads factual content
16        that allows the court to draw the reasonable inference
          that the defendant is liable for the misconduct
17        alleged. . . . Threadbare recitals of the elements of
          a cause of action, supported by mere conclusory
18        statements, do not suffice.
19   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and
20   internal quotation marks omitted).
21        In reviewing the sufficiency of a complaint under Civil
22   Rule 12(b)(6), we must accept as true all facts alleged in the
23   complaint and draw all reasonable inferences in favor of the
24   plaintiff.   See Newcal Indus., Inc. v. Ikon Office Solutions,
25   513 F.3d 1038, 1043 n. 2 (9th Cir. 2008).    However, we do not
26   need to accept as true conclusory allegations or legal
27   characterizations cast in the form of factual allegations.    See
28   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).

                                        6
 1        We may use judicially noticed facts to establish that a
 2   complaint does not state a claim for relief.    Skilstaf, Inc. v.
 3   CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012).     In
 4   addition, we can take judicial notice of the existence, filing
 5   and content of documents filed in Rivera’s underlying bankruptcy
 6   case.   See O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert,
 7   Inc.), 887 F.2d 955, 957–58 (9th Cir. 1989).
 8        We also may consider the existence and content of documents
 9   attached to and referenced in the complaint as exhibits.    Lee v.
10   City of L.A., 250 F.3d 668, 688 (9th Cir. 2001); Durning v. First
11   Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).    Even when a
12   document is not physically attached to the complaint, we may
13   consider its existence and contents when its authenticity is not
14   contested and when it necessarily is relied upon by the
15   plaintiffs in their complaint.   See United States v. Ritchie,
16   342 F.3d 903, 907–08 (9th Cir. 2003); Lee, 250 F.3d at 688.
17        Of course, just because a judicially-noticed document states
18   a “fact” does not necessarily mean that this fact is true.     Roth
19   v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).    Whether the facts
20   stated in a judicially noticed document are reasonably subject to
21   dispute depends on the nature of the facts stated and the nature
22   and purpose of the document as a whole.    See Ferguson v. Wells
23   Fargo Bank, N.A., 2013 WL 504709, at **2-3 (E.D. Cal. 2013); see
24   also Lee, 250 F.3d at 690.
25                                DISCUSSION
26        As set forth above, Rivera’s complaint challenges the
27   foreclosure proceedings and hinges on his allegation that the
28   assignment of deed of trust was invalid.    On its face, the

                                      7
 1   assignment of deed of trust duly assigned to Wells Fargo the
 2   original lender’s rights under Rivera’s note and deed of trust,
 3   including the right to foreclose.    Nonetheless, Rivera has
 4   offered three different arguments why, in his view, the
 5   assignment of deed of trust was invalid.    We will address each of
 6   these arguments in turn.
 7        First, Rivera contends that the attempted securitization of
 8   his loan effectively rendered his note and deed of trust
 9   unenforceable.   While his reasoning on this point is difficult to
10   follow, Rivera appears to rely on alternate legal theories.
11   According to Rivera, either the attempted assignment to Wells
12   Fargo as trustee failed because the securitization trust did not
13   actually exist or the attempted assignment was successful but
14   resulted in the original lender being “paid off” and thereby
15   “satisfied” Rivera’s note and deed of trust.    Under either
16   theory, California law does not permit a borrower to attack
17   nonjudicial foreclosure proceedings by invoking either the
18   alleged failure or the alleged success of the securitization
19   process.   See Jenkins v. JP Morgan Chase Bank, N.A.,
20   216 Cal.App.4th 497, 514-15 (2013); Nordeen v. Bank of Am., N.A.
21   (In re Nordeen), 495 B.R. 468, 479-81 (9th Cir. BAP 2013) (citing
22   Lane v. Vitek Real Estate Indus. Grp., 713 F.Supp.2d 1092, 1099
23   (E.D. Cal. 2010)).   Both Jenkins and In re Nordeen stand for the
24   general proposition that the borrower is not a party to the
25   securitization transaction and has no right to invoke the
26   securitization as a defense against nonjudicial foreclosure.
27        Second, Rivera contends that Wells Fargo and its agents had
28   no right to foreclose unless and until Wells Fargo established

                                      8
 1   that it is the holder of the note or otherwise is entitled to
 2   enforce the note under California’s version of the Uniform
 3   Commercial Code governing negotiable instruments.      See Cal. Com’l
 4   Code § 3101, et seq.    Assuming without deciding that Rivera’s
 5   note qualifies as a negotiable instrument governed by the Uniform
 6   Commercial Code, Rivera’s second argument lacks merit.
 7   California courts do not permit a borrower to impede nonjudicial
 8   foreclosure proceedings by demanding an advance judicial
 9   determination of the foreclosing beneficiary’s right to enforce
10   the note.   Debrunner v. Deutsche Bank Nat’l Trust Co.,
11   204 Cal.App.4th 433, 442 (2012); see also Jenkins,
12   216 Cal.App.4th at 511 (citing Debrunner and stating: “California
13   courts have refused to delay the nonjudicial foreclosure process
14   by allowing trustor-debtors to pursue preemptive judicial actions
15   to challenge the right, power, and authority of a foreclosing
16   ‘beneficiary’ or beneficiary's ‘agent’ to initiate and pursue
17   foreclosure.”).
18        In Rivera’s third and final argument, he complains that the
19   assignment of the deed of trust to Wells Fargo was fraudulent and
20   was executed by “Robbo Signature.”      However, Rivera’s fraud
21   allegations are insufficient to state a cognizable legal claim.
22   In federal court, fraud allegations must be stated with
23   particularity.    See Rule 7009 (incorporating Civil Rule 9(b));
24   In re Nordeen, 495 B.R. at 483.    Moreover, under California law,
25   a fraud cause of action requires allegations of
26   misrepresentation, knowledge of falsity, intent to defraud,
27   justifiable reliance, and resulting injury.      See Lazar v. Super.
28   Ct., 12 Cal.4th 631, 638 (1996).       Assuming the truth of Rivera’s

                                        9
 1   factual allegations, there is no indication that any form of
 2   misrepresentation occurred in conjunction with the assignment.
 3   More importantly, there is no indication that Rivera was a party
 4   to or even aware of the assignment at the time it was made and
 5   hence there is no rational basis to infer from Rivera’s
 6   allegations that Rivera relied on the so-called fraudulent
 7   assignment or suffered damages as a result of any such reliance.
 8        As for Rivera’s robo-signing allegations, a bare assertion
 9   that a document has been robo-signed does not give rise to a
10   fraud claim, especially when, as here, the borrower has not
11   disputed that he has defaulted on his loan obligations.    See
12   Sandri v. Capital One, N.A. (In re Sandri), 501 B.R. 369, 373-74
13   (Bankr. N.D. Cal. 2013); see also Pratap v. Wells Fargo Bank,
14   N.A., 2014 WL 3884413, at *5 (N.D. Cal. 2014) (“numerous courts
15   have found that where a plaintiff alleges that a document is void
16   due to robo-signing, yet does not contest the validity of the
17   underlying debt, and is not a party to the assignment, the
18   plaintiff does not have standing to contest the alleged
19   fraudulent transfer.”).
20        In the parlance of Iqbal, Rivera has not stated a plausible
21   claim for relief based on fraud.    He has not pled sufficient
22   factual content that would allow the bankruptcy court or us to
23   draw the reasonable inference that the assignment of deed of
24   trust was fraudulent.
25                              CONCLUSION
26        For the reasons set forth above, we AFFIRM the bankruptcy
27   court’s dismissal with prejudice of Rivera’s adversary
28   proceeding.

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