In re: VICTOR ORLANDO RIVERA v. Ocwen Loan Servicing, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: VICTOR ORLANDO RIVERA,
Debtor,
______________________________
VICTOR ORLANDO RIVERA,
Appellant,
v.
OCWEN LOAN SERVICING, LLC and
WELLS FARGO BANK, NA, Trustee for
Soundview Home Loan Trust 2007-OPT1,
Asset-Backed Certificates, Series 2007-
OPT1,
Appellees.
No. 15-60009
BAP No. 13-1505
MEMORANDUM*
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Kurtz, and Taylor, Bankruptcy Judges, Presiding
Submitted January 18, 2017**
FILED
JAN 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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

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Ocwen Loan Servicing, LLC and Wells Fargo Bank, N.A.’s request for
judicial notice, filed November 25, 2015, is granted.
AFFIRMED.
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