VICTOR RIVERA V. OCWEN LOAN SERVICING, LLC, No. 15-60009 (9th Cir. 2017)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JAN 26 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT In re: VICTOR ORLANDO RIVERA, No. 15-60009 Debtor, ______________________________ BAP No. 13-1505 VICTOR ORLANDO RIVERA, MEMORANDUM* Appellant, v. OCWEN LOAN SERVICING, LLC and WELLS FARGO BANK, NA, Trustee for Soundview Home Loan Trust 2007-OPT1, Asset-Backed Certificates, Series 2007OPT1, Appellees. Appeal from the Ninth Circuit Bankruptcy Appellate Panel Pappas, Kurtz, and Taylor, Bankruptcy Judges, Presiding Submitted January 18, 2017** * 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). Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges. Victor Orlando Rivera appeals pro se from the Bankruptcy Appellate Panel’s (“BAP”) judgment affirming the bankruptcy court’s judgment dismissing Rivera’s adversary proceeding with prejudice. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo BAP decisions, and apply the same standard of review that the BAP applied to the bankruptcy court’s ruling. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). We affirm. The bankruptcy court properly dismissed Rivera’s adversary proceeding for failure to state a claim because California law does not permit Rivera to bring a preemptive suit to challenge defendants’ authority to initiate nonjudicial foreclosure proceedings. See Gomes v. Countrywide Home Loans Inc., 121 Cal. Rptr. 3d 819, 824 (Ct. App. 2011) (California law does not “provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized” absent “a specific factual basis for alleging that the foreclosure was not initiated by the correct party”). To the extent that Rivera contends defendants engaged in fraudulent conduct, Rivera failed to plead the alleged fraud with particularity. See Fed. R. Civ. P. 9(b). Rivera’s request to amend the caption, filed August 3, 2016, is denied. 2 Ocwen Loan Servicing, LLC and Wells Fargo Bank, N.A.’s request for judicial notice, filed November 25, 2015, is granted. AFFIRMED. 3

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