716 Fed.Appx. 614 (9th Cir. 2017), 16-15396, Petrovich v. Ocwen Loan Servicing, LLC

Docket Nº:16-15396
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
 
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Page 614

716 Fed.Appx. 614 (9th Cir. 2017)

Al Davis PETROVICH, Plaintiff-Appellant,

v.

OCWEN LOAN SERVICING, LLC; Western Progressive, LLC, Defendants-Appellees.

No. 16-15396

United States Court of Appeals, Ninth Circuit

December 12, 2017

Argued and Submitted November 15, 2017 San Francisco, California

Editorial Note:

Governing the citation to unpublished opinions please refer to federal rules of appellate procedure rule 32.1.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.

Page 615

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.

MEMORANDUM[**]

Al Petrovich appeals the district court’s 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 Petrovich’s home. We

Page 616

have jurisdiction under 28 U.S.C. § 1291, and "[w]e review the district court’s 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 Petrovich’s 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 beneficiary’s ‘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, Petrovich’s 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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