NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

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;

WESTERN PROGRESSIVE, LLC;

BARCLAYS BANK PLC; BARCLAYS

CAPITAL REAL ESTATE, INC., DBA

Homeq Servicing; OCWEN LOAN

SERVICING, LLC; DEUTSCHE BANK

AG, 

Defendants-Appellees.

No. 15-55246

D.C. No. 

8:12-cv-00323-CJC-RNB

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted November 7, 2016

Pasadena, California

FILED

DEC 14 2016

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.
Before: WARDLAW and BYBEE, Circuit Judges, and BELL,** District Judge.

 

Helen Galope appeals the district court’s partial dismissal and partial

summary judgment of her action under the Sherman Antitrust Act and California

state law against Appellees Deutsche Bank National Trust Co. (“DBNTC”),

Western Progressive and Ocwen Loan Servicing (collectively the “DBNTC

Defendants”); Barclays Bank (“Barclays”), Barclays Capital Real Estate Inc.

(“BCREI”) (collectively the “Barclays Defendants”), and Deutsche Bank AG

(“Deutsche Bank”). 

1. The district court did not err in holding that the DBNTC Defendants’

alleged violation of California Business and Professions Code § 17200 et seq

(“UCL”) and alleged breach of the implied covenant of good faith and fair dealing

were preempted under the Bankruptcy Code. These state-law claims are based on

alleged violations of the automatic stay, and are therefore preempted. See MSR

Exploration Ltd. v. Meridian Oil, Inc., 74 F.3d 910, 913–14 (9th Cir. 1996). As to

Galope’s federal claim under 11 U.S.C. § 362(k), the district court properly

dismissed it because it could only have been brought before the bankruptcy court. 

See C.D. Cal. G.O. 13-05 (July 1, 2013); 28 U.S.C. § 157(a).

** The Honorable Robert Holmes Bell, United States District Judge for

the Western District of Michigan, sitting by designation.

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2. The district court did not err in granting summary judgment on Galope’s

antitrust claims against the Barclays Defendants, because Galope lacked antitrust

standing. Galope alleges that Barclays’ manipulation of the LIBOR rate injured

her by causing her to purchase a loan product that she otherwise would not have. 

However, she failed to establish that she made any payments on her loan that were

linked to LIBOR. Any injury that she may have suffered was therefore too indirect

and speculative to confer antitrust standing. See Amarel v. Connell, 102 F.3d 1494,

1507 (9th Cir. 1996). 

3. Nor did the district court err in granting summary judgment on Galope’s

state-law claims against the Barclays Defendants. Claims under California’s UCL

and False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq.,

cannot be predicated on vicarious liability. Perfect 10, Inc. v. Visa Int’l Serv.

Ass’n, 494 F.3d 788, 808 (9th Cir. 2007). Rather, “[a] defendant’s liability must be

based on his personal participation in the unlawful practices and unbridled control

over the practices that are found to violate [these statutes].” Id. (quoting Emery v.

Visa Int’l Serv. Ass’n 95 Cal. App. 4th 952, 960 (2002)). 

Galope purchased her loan from New Century, and dealt exclusively with

New Century during the loan-origination process. Barclays had no involvement

until at least four months later, when the loan was sold into the trust, and BCREI

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became the designated servicer. Because liability can be based on only personal

participation in unlawful activity, the Barclays Defendants were entitled to

summary judgment on these claims. 

4. Similarly, Galope cannot attribute any deceptive statements to the

Barclays Defendants during the loan origination process to maintain a cause of

action for fraud. See Minn. Mut. Life Ins. Co. v. Ensley, 174 F.3d 977, 982 (9th

Cir. 1999). Thus, summary judgment was also appropriate for this claim. 

5. The district court did not err in ruling in favor of the Barclays Defendants

on Galope’s claim for breach of California’s implied covenant of good faith and

fair dealing. The parties must have a contractual relationship as a prerequisite for

this claim. Jenkins v. JP Morgan Chase Bank, N.A. 216 Cal. App. 4th 497, 525

(2013). Galope argues that she was obligated to make monthly mortgage payments

to a subsidiary of Barclays, which established a contractual relationship between

Galope and Barclays. But there is no contractual relationship between a mortgagor

and a loan servicer. See, e.g., Reed v. US Bank N.A., No. 14-cv-05437-VC, 2015

WL 5042244, at *3 (N.D. Cal. Aug. 25, 2015) (“[A]s the loan servicer, [defendant]

was never a party to the deed of trust.”); Howard v. First Horizon Home Loan

Corp., No. 12-cv-05735-JST, 2013 WL 3146792, at *3 (N.D. Cal. June 18, 2013)

(dismissing plaintiff’s implied covenant claim because a contractual “relationship

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does not exist[] on the basis that [defendant] acted as a loan servicer or as an agent

for [lender] in connection with the deed of trust”). Therefore, there was no

contractual relationship between the two parties, and summary judgment was

appropriate.

6. Lastly, the district court did not err in finding that it lacked personal

jurisdiction as to Deutsche Bank. Galope argues that, because she raised antitrust

claims in her complaint, the district court should have applied a nationwidecontacts analysis under 15 U.S.C. § 22. See Go-Video Inc. v. Akai Elec. Co., Ltd.,

885 F.2d 1406, 1415 (9th Cir. 1988). But Galope lacks standing to bring her

antitrust claims against Deutsche Bank for the same reason she lacks standing

against Barclays: any injury she suffered was too indirect and speculative to confer

antitrust standing. See Amarel, 102 F.3d at 1507. Therefore, the nationwidecontacts test under § 22 does not apply. Moreover, the district court did not abuse

its discretion in denying leave to amend the complaint, because it was “clear that

the complaint could not be saved by any amendment.” See Harris v. Amgen, 573

F.3d 728, 737 (9th Cir. 2009). 

AFFIRMED.

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