James Herman v. U.S. Bank

MEMORANDUM

Appellant James Herman appeals the district court’s dismissal of his complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. We have jurisdiction under 28 U.S.C. § 1291 .

Herman does not contest that he is in default on his mortgage or that the original lender could foreclose on his home. Instead, he premises his wrongful foreclosure claim on “asserted defects in the chain of assignments and the absence of ‘lawful ownership’ of the note” by the defendants. Debrunner v. Deutsche Bank Nat’l Trust Co., 204 Cal.App.4th 433, 444 , 138 Cal.Rptr.3d 830 (2012). Such defects are insufficient to show prejudice, see id. at 443-44 , 138 Cal.Rptr.3d 830 , and Herman failed to plead any other facts demonstrating prejudice. Therefore, the district court did not err in dismissing Herman’s claim for wrongful foreclosure. See Herrera v. Fed. Nat’l Mortg. Ass’n, 205 Cal.App.4th 1495, 1507 , 141 Cal.Rptr.3d 326 (2012).

For the first time on appeal, Herman argues that the defendants breached their duty of care by failing to provide an adequate response to his inquiries regarding a loan modification. Herman waived this theory of relief because…