Opinion
No. 17-16680
10-26-2018
VERNON DECK, Plaintiff-Appellant, v. WELLS FARGO BANK, N.A., National Association, as Trustee for Option One Mortgage Loan Trust 2003-1, Asset-Backed Certificates, Series 2003-1; et al., Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 2:17-cv-00234-MCE-KJN MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Vernon Deck appeals pro se from the district court's judgment dismissing his action alleging violations of the Fair Debt Collection Practices Act, the California Homeowner Bill of Rights Act ("HBOR"), and other state law claims arising out of foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of statutory standing. Nat'l Council of La Raza v. Cegavske, 800 F.3d 1032, 1039 (9th Cir. 2015). We review for clear error the district court's underlying factual determinations. Am.-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 506 (9th Cir. 1991). We reverse and remand.
The district court did not commit clear error in finding, following an evidentiary hearing, that Deck did not sign the note relating to a refinance loan. See id. at 506. The district court erred, however, in finding that Deck lacked standing to sue for violations of HBOR because he was not a signatory to the note. HBOR defined a "borrower" as "any natural person who is a mortgagor or trustor and who is potentially eligible for any federal, state, or proprietary foreclosure prevention alternative program offered by, or through, his or her mortgage servicer." Cal. Civ. Code § 2920.5 (repealed Jan. 1, 2018). Because it is undisputed that Deck is a trustor under the deed of trust securing the refinance loan, we reverse and remand for further proceedings on Deck's claims under HBOR only.
We do not consider defendants' alternative arguments concerning the merits of Deck's claims under the HBOR, or the effect, if any, of the 2018 repeal of the specific statutory violations alleged.
We do not consider matters not raised before the district court, or matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Deck's request for judicial notice (Docket Entry No. 26) is granted.
REVERSED and REMANDED.