George Gehron v. Christiana Trust

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GEORGE GEHRON; CHERYL L. No. 16-55660 GEHRON, D.C. No. 5:15-cv-00058-JGB-SP Plaintiffs-Appellants, v. MEMORANDUM* CHRISTIANA TRUST, as Trustee of ALRP Trust 4, Erroneously Sued As Wilmington Trust National Association, not in its individual capacity but as Trustee of ARLP Securitization Trust Series 2014-2; OCWEN LOAN SERVICING LLP, Erroneously Sued As Ocwen Loan Servicing LLC,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

George Gehron and Cheryl L. Gehron appeal pro se from the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). summary judgment in their action alleging Trust in Lending Act (“TILA”) and

state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Progressive Cas. Ins. Co. v. Owen, 519 F.3d 1035, 1037 (9th Cir. 2008).

We affirm.

The district court properly granted summary judgment on the Gehrons’

claim that defendants violated California’s Homeowner Bill of Rights (“HBOR”)

because the Gehrons failed to raise a genuine dispute of material fact as to whether

defendants failed to comply with Cal. Civ. Code § 2924.18(a)(1). See Cal. Civ.

Code § 2924.18(a)(1) (setting forth requirements under the HBOR once a borrower

has submitted a complete first loan modification).

The district court properly dismissed the Gehrons’ TILA claim as barred by

the doctrine of res judicata because the Gehrons could have raised this claim in

their prior bankruptcy action. See Siegel v. Fed. Home Loan Mortg. Corp., 143

F.3d 525, 528-29 (9th Cir. 1998) (applying res judicata to claims a borrower could

have brought against the lender in an earlier bankruptcy proceeding); United States

v. Coast Wineries, 131 F.2d 643, 648 (9th Cir. 1942) (“[A]n order disallowing a

claim in bankruptcy is binding and conclusive on all parties or their privies, and

being in the nature of a final judgment, furnishes a basis for a plea of res

2 16-55660 judicata.”).

The district court properly granted summary judgment on the Gehrons’

claim under Cal Civ. Code § 2934a because the Gehrons failed to raise a genuine

dispute of material fact as to whether the June 9, 2014 substitution of trustee was

void. See Cal Civ. Code § 2934a(d) (providing that a beneficiary’s “authorized

agents” may execute a valid substitution of trustee).

The district court properly granted summary judgment on the Gehrons’

claim that the May 12, 2014, May 28, 1014, and June 30, 2014 documents

assigning the deed of trust were void because the Gehrons failed to raise a genuine

dispute of material fact as to whether the assignment was not authorized by the

beneficiary’s attorney-in-fact. See Cal. Prob. Code § 4022 (setting forth standards

for a valid “attorney-in-fact” agreement).

We reject as without merit the Gehrons’ contention that the district court

misapplied California law.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 16-55660