NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BROCK WILLIAMS and SYLVIA 

WILLIAMS, 

Plaintiffs-Appellants, 

 v. 

BANK OF AMERICA, N.A. and U.S. 

BANK NA, as Trustee for Resident Accredit 

Loans Inc Series 2006 QS2, 

Defendants-Appellees.

No. 15-17335 

D.C. No. 5:15-cv-00792-LHK 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Submitted July 11, 2017**

San Francisco, California

Before: GRABER and FRIEDLAND, Circuit Judges, and MARSHALL,***

District Judge.

 

* 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).

*** The Honorable Consuelo B. Marshall, United States District Judge for 

the Central District of California, sitting by designation.

FILED

JUL 13 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Brock and Sylvia Williams appeal the district court’s order dismissing their 

First Amended Complaint without leave to amend. We review de novo, Pakootas 

v. Teck Cominco Metals, Ltd., 646 F.3d 1214, 1218 n.20 (9th Cir. 2011), and 

affirm.

The Williamses allege that U.S. Bank attempted to complete a nonjudicial 

foreclosure sale of their real property in San Jose, California, despite U.S. Bank’s 

allegedly lacking a legitimate interest in the property. They claim that the 

documentation on which U.S. Bank relies to establish an interest in the property, 

an assignment of rights to a deed of trust, is forged and was unauthorized. The 

Williamses also allege that Bank of America has an adverse interest in the same 

property, and they claim that Bank of America likewise relies on a forged deed of 

trust to establish its interest. The Williamses’ First Amended Complaint sought to 

quiet title and requested cancellation of the allegedly forged and unauthorized 

instruments. 

The Williamses do not state a viable claim to quiet title. They do not allege 

that they paid or offered to pay the amounts outstanding on their deed of trust. See, 

e.g., Lueras v. BAC Home Loans Servicing, LP, 163 Cal. Rptr. 3d 804, 835 (Ct. 

App. 2013) (“A borrower may not . . . quiet title against a secured lender without 

first paying the outstanding debt on which the mortgage or deed of trust is 

based.”). It is also undisputed that Bank of America no longer makes any adverse 
3 

claim against the Williamses’ property.1 See, e.g., Friends of the Trails v. Blasius, 

93 Cal. Rptr. 2d 193, 206 (Ct. App. 2000) (“[T]here is no entitlement to a 

judgment quieting title insofar as there is no antagonistic property interest.”).

The request for a cancellation of instruments was also correctly dismissed. 

A borrower cannot assert a California-law claim for cancellation of instruments in 

a preemptive pre-foreclosure action.2 See Saterbak v. JPMorgan Chase Bank, 

N.A., 199 Cal. Rptr. 3d 790, 795-96 (Ct. App. 2016) (distinguishing Yvanova v. 

New Century Mortg. Corp., 365 P.3d 845 (Cal. 2016)). 

In addition, the Williamses argue that their First Amended Complaint 

“implicates” several claims and legal theories that they did not press in district 

court. “[I]t is well established that an appellate court will not reverse a district 

court on the basis of a theory that was not raised below.” Chadd v. United States, 

794 F.3d 1104, 1109 n.4 (9th Cir. 2015) (quoting Alaska Airlines, Inc. v. United 

 

1 The Williamses do argue that the district court took improper judicial notice of 

several “foreclosure documents,” but the only document on whose substance the 

district court relied to dismiss the First Amended Complaint was a recorded 

reconveyance of interests from Bank of America to the Williamses. The parties 

agreed that Bank of America no longer claims an adverse interest in the 

Williamses’ property. 

2 Although this rule has at times been labeled a “standing” doctrine, it does not 

implicate our subject matter jurisdiction. See Lexmark Int’l, Inc. v. Static Control 

Components, Inc., 134 S. Ct. 1377, 1388 n.4 (2014) (“[T]he absence of a valid . . . 

cause of action does not implicate subject-matter jurisdiction . . . .” (quoting

Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 642-43 (2002))).
4 

Airlines, Inc., 948 F.2d 536, 546 n.15 (9th Cir. 1991)), cert. denied, 136 S. Ct. 

2008 (2016). We instead interpret the Williamses’ assertion of those theories as an 

argument that the district court erred by dismissing without leave to amend.

Because the amendments that the Williamses propose would be futile, we affirm. 

See, e.g., Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 

1061 (9th Cir. 2004) (“[A] district court does not err in denying leave to amend 

where the amendment would be futile.” (quoting Saul v. United States, 928 F.2d 

829, 843 (9th Cir. 1991))).

First, the Williamses argue that they could state a claim against U.S. Bank 

under California Civil Code section 2924(a)(6). Although relief might be available 

to a borrower after an unauthorized foreclosure sale (a question that we need not 

consider here because no foreclosure sale has occurred), a borrower may not seek 

to enjoin a future foreclosure sale under section 2924(a)(6). Lucioni v. Bank of 

Am., N.A., 207 Cal. Rptr. 3d 418, 422-23 (Ct. App. 2016). Amendment to assert a 

claim under section 2924(a)(6) would therefore be futile.

Second, the Williamses argue that they could assert a common law claim for 

wrongful foreclosure. The Williamses cannot state a claim for wrongful 

foreclosure, however, until a sale has occurred. See, e.g., Miles v. Deutsche Bank 

Nat’l Tr. Co., 186 Cal. Rptr. 3d 625, 636 (Ct. App. 2015) (listing the elements of 
5 

“a tort cause of action for wrongful foreclosure,” including that the defendant 

“caused an illegal, fraudulent, or willfully oppressive sale”).

Third, the Williamses assert that both U.S. Bank and Bank of America are 

liable under California Business and Professions Code section 17200. To state a 

claim under section 17200, a plaintiff must allege that a defendant’s unlawful, 

unfair, or fraudulent business practices caused her an economic injury. Kwikset 

Corp. v. Superior Court, 246 P.3d 877, 885 (Cal. 2011). “That causal connection 

is broken when a complaining party would suffer the same harm whether or not a 

defendant complied with the law.” Daro v. Superior Court, 61 Cal. Rptr. 3d 716, 

729 (Ct. App. 2007). Here, the Williamses assert that “Defendants engaged in 

deceptive business practices . . . by, among other things, executing and recording 

documents without the legal authority to do so.” But the Williamses do not allege 

that they would be relieved of their payment obligations under the deed of trust if 

U.S. Bank had not recorded documents as it did, nor do the Williamses explain 

how any economic injury they suffered was caused by Bank of America. Given 

the lack of any causal connection between Defendants’ actions and any injury, the 

Williamses could not state a claim under section 17200. See Turner v. Wells 

Fargo Bank NA (In re Turner), ___ F.3d ___, No. 15-60046, 2017 WL 2587981, 

*4-5 (9th Cir. June 15, 2017) (affirming dismissal of a claim under section 17200 

because the plaintiffs’ property “would have been foreclosed regardless of the 
6 

alleged deficiencies” in an assignment of a deed of trust and a related document, so 

causation was lacking).

Finally, the Williamses argue that they could state a claim for declaratory 

relief to ascertain “who[] is on the other side of their contract/Note.” “However, 

California courts do not allow such preemptive suits because they ‘would result in 

the impermissible interjection of the courts into a nonjudicial scheme enacted by 

the California Legislature.’” Saterbak, 199 Cal. Rptr. 3d at 814 (quoting Jenkins v. 

JP Morgan Chase Bank, N.A., 156 Cal. Rptr. 3d 912, 925 (Ct. App. 2013), 

disapproved of in part on other grounds by Yvanova, 365 P.3d 845). 

AFFIRMED.