Petrovich v. Ocwen Loan Servicing, LLC, 121217 FED9, 16-15396

Docket Nº:16-15396
Party Name:AL DAVIS PETROVICH, Plaintiff-Appellant, v. OCWEN LOAN SERVICING, LLC; WESTERN PROGRESSIVE, LLC, 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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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

NOT FOR PUBLICATION

Argued and Submitted November 15, 2017 San Francisco, California

Appeal from the United States District Court for the Northern District of California, D.C. No. 3:15-cv-00033-EMC Edward M. Chen, District Judge, Presiding

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 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., 178 Cal.Rptr.3d 745, 748 (Cal.Ct.App. 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., 121 Cal.Rptr.3d 819, 825 (Cal.Ct.App. 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., 365 P.3d 845, 861 (Cal. 2016). Petrovich alleges three reasons why the assignment of his deed of trust and the underlying promissory note from Sand Canyon, the original lender, to Deutsche Bank, Western Progressive's predecessor in interest, was void. Each allegation is made in support of his central contention that the subsequent...

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