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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
MAR 27 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

HELEN GALOPE, an individual, Plaintiff - Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee under Pooling and Servicing Agreement dated as of May 1, 2007 Securitized Asset Backed Receivables LLC Trust 2007-BR4; et al., Defendants - Appellees.

No. 12-56892 D.C. No. 8:12-cv-00323-CJCRNB MEMORANDUM*

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Argued and Submitted February 11, 2014 Pasadena, California Before: D.W. NELSON, PAEZ, and NGUYEN, Circuit Judges. Helen Galope appeals the district courts grant of summary judgment in favor of Deutsche Bank National Trust Company (DBNTC), Ocwen Loan

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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Servicing, and Western Progressive, LLC (WPT) (collectively, DBNTC Defendants) and dismissal of her claims against Barclays Bank PLC and Barclays Capital Real Estate Inc. d/b/a HomEq Servicing (collectively, Barclays Defendants). We affirm in part, reverse in part, and remand for further proceedings. 1. We reverse the district courts ruling that Galope failed to establish injury-

in-fact necessary for Article III standing on her LIBOR-based claims. Galope adequately alleged that she would not have purchased her loan had she known that the Defendants were manipulating the LIBOR rate. Article III standing exists when a plaintiff purchases a product she would not have otherwise purchased but for the alleged misconduct of the defendant. Hinojos v. Kohl's Corp., 718 F.3d 1098, 1104 n.3 (9th Cir. 2013) (citing Mazza v. Am. Honda Motor Co., 666 F.3d 581, 595 (9th Cir. 2012)); Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011). Contrary to the dissents assertion, Galopes standing does not turn on whether she actually made interest payments that were adjusted in response to the allegedly manipulated LIBOR rate. Galopes cognizable injury occurred when she

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purchased the loan, not upon payment of LIBOR-affected interest.1 Maya, 658 F.3d at 1069. We therefore reverse and remand for further proceedings on Galopes LIBOR claims against the Barclays Defendants under the Sherman Antitrust Act, 15 U.S.C. 12, and her state law claims for breach of the covenant of good faith and fair dealing, and fraud. However, we conclude that the district court properly granted summary judgment on all LIBOR-based claims against the DBNTC Defendants because Galope failed to present any evidence that DBNTC was involved in, or conspired in, the alleged LIBOR manipulation. 2. We reverse the district courts ruling that Galope lacks statutory standing to

pursue her LIBOR-based Unfair Competition Law (UCL), Cal. Bus. & Prof. Code 17200, and False Advertising Law (FAL), Cal. Bus. & Prof. Code 17500, claims against the Barclays Defendants and remand for further proceedings. Galope has statutory standing to pursue these claims because she alleged that she

At oral argument, the Barclays Defendants argued for the first time that Galopes LIBOR-based claims were not traceable to their misconduct because they did not actually sell the loan to Galope. Galope, however, adequately alleged in her complaint that Barclays PLC simply contracted with another entity to sell the LIBOR-based loan product that is the subject of this litigation. At the motion-todismiss stage, Galopes allegations are sufficient to satisfy the traceability requirement of Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). 3

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purchased a loan that she would not have otherwise purchased but for the Barclays Defendants alleged misconduct. See Kwikset Corp. v. Superior Court, 246 P.3d 877, 890 (Cal. 2011); Cal. Bus. & Prof. Code 17204, 17535. 3. We affirm the district courts rulings on all claims associated with the

missing-fax-page scheme. Galope stated in her Third Amended Complaint (TAC) that the portions of the fax transmission that she received put her on notice that her payments would increase. This admission directly undermines her allegations that the Barclays Defendants and DBNTC deceived her into believing that the initial payment amounts were fixed throughout the term of the loan. 4. We reverse the district courts rulings that Galopes wrongful foreclosure2

and UCL claims based on the DBNTC Defendants violation of the bankruptcy courts automatic stay are not justiciable. Although rescission of the salealmost seven months after the violationmooted Galopes claims for injunctive and declaratory relief, it did not affect her claim for damages. See Wilson v. State of Nev., 666 F.2d 378, 380-81 (9th Cir. 1982). Further, regardless of whether Galope

Although Galopes seventh claim in her TAC is styled as a wrongful foreclosure claim, the content of the claim is exclusively focused on violation of the automatic stay under 11 U.S.C. 362. The panel thus construes this as a claim for damages under 11 U.S.C. 362(k)(1). 4

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has equity in the home, 11 U.S.C. 362(k)(1) provides a statutory basis for damages.3 5. We reverse the district courts grant of summary judgment on Galopes

claim for breach of the covenant of good faith and fair dealing associated with violation of the automatic stay. The covenant of good faith and fair dealing finds particular application in situations where one party is invested with a discretionary power affecting the rights of another. Hicks v. E.T. Legg & Associates, 108 Cal. Rptr. 2d 10, 19 (Ct. App. 2001). Discretionary power of this kind must be exercised in good faith. Carma Developers (Cal.), Inc. v. Marathon Dev. California, Inc., 826 P.2d 710, 726 (Cal. 1992). The power of sale in the deed of trust provided the DBNTC Defendants with discretionary authority to foreclose upon Galopes home in the event of default. Contrary to the DBNTC Defendants argument, there is sufficient evidence in the record to support a reasonable inference that the DBNTC Defendants had notice of the automatic stay when they

The DBNTC Defendants alternative argument that Galope released her right to pursue her UCL claim when she signed her loan modification agreement fails, in part, because the release only purports to apply to claims, damages or liabilities . . . existing on the date of this Agreement . . . . The loan modification agreement is dated April 17, 2008. The alleged violation of the automatic stay did not occur until September 1, 2011. 5

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executed the trustees sale, and that they refused to rescind it upon Galopes request. 6. Galope argues on appeal that the district court erred because it did not

provide her with leave to amend her complaint. On remand, Galope may seek further leave to amend at the district courts discretion. However, leave to amend is foreclosed on all claims associated with the alleged missing-fax-page scheme. No additional allegations will change the fact that the portion of the document Galope received and signed provided her with notice that her payments were subject to change after five years and would increase. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (Futility of amendment can, by itself, justify the denial of a motion for leave to amend.). 7. The parties shall bear their own costs on appeal. REVERSED, IN PART, AFFIRMED, IN PART, AND REMANDED.

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FILED
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Galope v. Deutsche Bank, 12-56892 NGUYEN, Circuit Judge, dissenting in part:

MOLLY C. DWYER, CLERK

Because I conclude that Galope failed to establish standing on her LIBOR-based claims, I respectfully dissent from the majoritys decision reversing these claims as to the Barclays Defendants. Galope does not allege that she suffered any loss due to the Barclays Defendants purported deceptive conduct, nor does she allege that any loss is traceable to a misrepresentation related to the LIBOR-rate manipulation or to the LIBOR-rate manipulation itself. See, e.g., Hinojos v. Kohls Corp., 718 F.3d 1098, 1104 (9th Cir. 2013) (concluding that the plaintiff adequately had alleged standing where, because of the misrepresentation the consumer (allegedly) was made to part with more money than he or she otherwise would have been willing to expend (quoting Kwikset Corp. v. Superior Court, 120 Cal. Rptr. 3d 741, 757 (2011))); Mazza v. Am. Honda Motor Co., 666 F.3d 581, 594 (9th Cir. 2012) (To the extent that class members were relieved of their money by Hondas deceptive conductas Plaintiffs allegethey have suffered an injury in fact under Article III (citing Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1021 (9th Cir. 2011))); Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (To survive a motion to dismiss for lack of constitutional standing, plaintiffs must establish a line of causation between defendants action and their alleged harm that is more than attenuated. (citing Allen v. Wright, 468 U.S. 737, 1

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757 (1984))). Indeed, as the majority concedes, Galopes payments never were affectedshe paid a fixed interest rate and defaulted before the allegedly manipulated LIBOR rate went into effect on her loan; she then was granted a loan modification with a (lower) fixed interest rate that likewise was unrelated to the LIBOR rate and defaulted again. Although Galope alleges that she would not have purchased the loan but for the Barclays Defendants alleged manipulation of the LIBOR rate, Galope alleges no loss from the alleged manipulationor any related misrepresentation or omission. Therefore, Galopes alleged injury is far too attenuated to establish Article III standing.1

For the same reasons, Galope lacks statutory and antitrust standing. See, e.g., Rebel Oil Co. v. ARCO, 51 F.3d 1421, 1433 (9th Cir. 1995) (To show antitrust injury, a plaintiff must prove that his loss flows from an anticompetitive aspect or effect of the defendants behavior, since it is inimical to the antitrust laws to award damages for losses stemming from acts that do not hurt competition. (citation omitted)). The interest rates on Galopes loan were unaffected by the Barclays Defendants anticompetitive behavior.
1

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United States Court of Appeals for the Ninth Circuit Office of the Clerk 95 Seventh Street San Francisco, CA 94103 Information Regarding Judgment and Post-Judgment Proceedings Judgment This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice. Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper. Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3) (1) A. Purpose (Panel Rehearing): A party should seek panel rehearing only if one or more of the following grounds exist: A material point of fact or law was overlooked in the decision; A change in the law occurred after the case was submitted which appears to have been overlooked by the panel; or An apparent conflict with another decision of the Court was not addressed in the opinion. Do not file a petition for panel rehearing merely to reargue the case. Purpose (Rehearing En Banc) A party should seek en banc rehearing only if one or more of the following grounds exist:

B.

Post Judgment Form - Rev. 08/2013

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Consideration by the full Court is necessary to secure or maintain uniformity of the Courts decisions; or The proceeding involves a question of exceptional importance; or The opinion directly conflicts with an existing opinion by another court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.

(2)

Deadlines for Filing: A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2. Statement of Counsel A petition should contain an introduction stating that, in counsels judgment, one or more of the situations described in the purpose section above exist. The points to be raised must be stated clearly. Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. The petition must be accompanied by a copy of the panels decision being challenged. An answer, when ordered by the Court, shall comply with the same length limitations as the petition. If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

(3)

(4)

Post Judgment Form - Rev. 08/2013

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The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms. You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.

Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) The Bill of Costs must be filed within 14 days after entry of judgment. See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms. Attorneys Fees Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. All relevant forms are available on our website at www.ca9.uscourts.gov under Forms or by telephoning (415) 355-7806. Petition for a Writ of Certiorari Please refer to the Rules of the United States Supreme Court at www.supremecourt.gov Counsel Listing in Published Opinions Please check counsel listing on the attached decision. If there are any errors in a published opinion, please send a letter in writing within 10 days to: Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 55164-0526 (Attn: Jean Green, Senior Publications Coordinator); and electronically file a copy of the letter via the appellate ECF system by using "File Correspondence to Court," or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.

Post Judgment Form - Rev. 08/2013

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United States Court of Appeals for the Ninth Circuit BILL OF COSTS
Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs. v. The Clerk is requested to tax the following costs against: 9th Cir. No.

Cost Taxable under FRAP 39, 28 U.S.C. 1920, 9th Cir. R. 39-1

REQUESTED Each Column Must Be Completed

ALLOWED To Be Completed by the Clerk

No. of Docs.

Pages per Doc.

Cost per Page* $ $ $ $ $ $ $ $ $ $ $

TOTAL COST

No. of Docs.

Pages per Doc. $ $ $ $ $

Cost per Page* $ $ $ $ $

TOTAL COST

Excerpt of Record Opening Brief Answering Brief Reply Brief Other**

TOTAL:

TOTAL: $

* Costs per page may not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1. ** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered. Attorneys' fees cannot be requested on this form.

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, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed. Signature ("s/" plus attorney's name if submitted electronically) Date Name of Counsel: Attorney for:

(To Be Completed by the Clerk) Date Costs are taxed in the amount of $ Clerk of Court By: , Deputy Clerk