716 Fed.Appx. 614 (9th Cir. 2017), 16-15396, Petrovich v. Ocwen Loan Servicing, LLC
|Citation:||716 Fed.Appx. 614|
|Party Name:||Al Davis PETROVICH, Plaintiff-Appellant, v. OCWEN LOAN SERVICING, LLC; Western Progressive, LLC, Defendants-Appellees.|
|Attorney:||Richard Lawrence Antognini, Law Office of Richard L. Antognini, Grass Valley, CA, for Plaintiff-Appellant Al Davis Petrovich, Pro Se Jason Michael Julian, Esquire, Attorney, John B. Sullivan, Esquire, Jon D. Ives, Esquire, Attorney, Severson & Werson APC, San Francisco, CA, for Defendants-Appellees|
|Judge Panel:||Before: RAWLINSON and BYBEE, Circuit Judges, and SMITH, Chief District Judge. Rawlinson, Circuit Judge, concurring:|
|Case Date:||December 12, 2017|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted November 15, 2017 San Francisco, California
Governing the citation to unpublished opinions please refer to federal rules of appellate procedure rule 32.1. See also U.S.Ct. of App. 9th Cir. Rule 36-3.
Appeal from the United States District Court for the Northern District of California, Edward M. Chen, District Judge, Presiding, D.C. No. 3:15-cv-00033-EMC
Richard Lawrence Antognini, Law Office of Richard L. Antognini, Grass Valley, CA, for Plaintiff-Appellant
Al Davis Petrovich, Pro Se
Jason Michael Julian, Esquire, Attorney, John B. Sullivan, Esquire, Jon D. Ives, Esquire, Attorney, Severson & Werson APC, San Francisco, CA, for Defendants-Appellees
Before: RAWLINSON and BYBEE, Circuit Judges, and SMITH,[*] Chief District Judge.
Al Petrovich appeals the district courts dismissal of his wrongful-foreclosure action against Western Progressive, LLC and Ocwen Loan Servicing, LLC, respectively the trustee and servicer for the deed of trust encumbering Petrovichs home. We
have jurisdiction under 28 U.S.C. § 1291, and "[w]e review the district courts grant of a motion to dismiss de novo ." Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We affirm.
1. California law bars Petrovichs wrongful-foreclosure claim because he filed suit before appellees nonjudicial foreclosure of his home.1 Kan v. Guild Mortg. Co., 230 Cal.App.4th 736, 178 Cal.Rptr.3d 745, 748 (2014) ("California courts have refused to delay the nonjudicial foreclosure process by allowing trustor-debtors to pursue preemptive judicial actions to challenge the right, power, and authority of a foreclosing beneficiary or beneficiarys agent to initiate and pursue foreclosure."). We take no position as to whether California recognizes a carve out to this bar for complaints that "identif[y] a specific factual basis for alleging that the foreclosure was not initiated by the correct party." Gomes v. Countrywide Home Loans, Inc., 192 Cal.App.4th 1149, 121 Cal.Rptr.3d 819, 825 (2011). Rather, we find that, even if this carve out exists, Petrovichs allegations fail as a matter of law or are inadequately pled.
In order for a homeowner to challenge a California nonjudicial foreclosure based on a theory that the deed of trust was ineffectively assigned to the foreclosing party, the assignment must be void rather than merely voidable. Yvanova v. New Century Mortg. Corp., 62 Cal.4th 919, 199 Cal.Rptr.3d 66, 365 P.3d 845, 861 (2016). Petrovich alleges three reasons why the assignment of his deed of trust and the...
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