5 6 Vernon Deck v. WELLS FARGO BANK, N.A., National Association, as Trustee for Option One Mortgage…

NOT FOR PUBLICATION 1
2
UNITED STATES COURT OF APPEALS 3
4
FOR THE NINTH CIRCUIT 5
6
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.
No. 17-16680
D.C. No. 2:17-cv-00234-MCE-KJN
MEMORANDUM*
7
Appeal from the United States District Court 8
for the Eastern District of California 9
Morrison C. England, Jr., District Judge, Presiding 10
11
Submitted October 22, 2018**
12
13
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges. 14
15
Vernon Deck appeals pro se from the district court’s judgment dismissing 16
his action alleging violations of the Fair Debt Collection Practices Act, the 17
California Homeowner Bill of Rights Act (“HBOR”), and other state law claims 18
* 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).
FILED
OCT 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-16680
arising out of foreclosure proceedings. We have jurisdiction under 28 U.S.C. 1
§ 1291. We review de novo a dismissal for lack of statutory standing. Nat’l 2
Council of La Raza v. Cegavske, 800 F.3d 1032, 1039 (9th Cir. 2015). We review 3
for clear error the district court’s underlying factual determinations. Am.-Arab 4
Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 506 (9th Cir. 1991). We 5
reverse and remand. 6
The district court did not commit clear error in finding, following an 7
evidentiary hearing, that Deck did not sign the note relating to a refinance loan. 8
See id. at 506. The district court erred, however, in finding that Deck lacked 9
standing to sue for violations of HBOR because he was not a signatory to the note. 10
HBOR defined a “borrower” as “any natural person who is a mortgagor or trustor 11
and who is potentially eligible for any federal, state, or proprietary foreclosure 12
prevention alternative program offered by, or through, his or her mortgage 13
servicer.” Cal. Civ. Code § 2920.5 (repealed Jan. 1, 2018). Because it is 14
undisputed that Deck is a trustor under the deed of trust securing the refinance 15
loan, we reverse and remand for further proceedings on Deck’s claims under 16
HBOR only. 17
We do not consider defendants’ alternative arguments concerning the merits 18
of Deck’s claims under the HBOR, or the effect, if any, of the 2018 repeal of the 19
specific statutory violations alleged. 20

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3 17-16680
We do not consider matters not raised before the district court, or matters not 1
specifically and distinctly raised and argued in the opening brief. See Padgett v. 2
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). 3
Deck’s request for judicial notice (Docket Entry No. 26) is granted. 4
REVERSED and REMANDED. 5

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