The Honorable Robert Holmes Bell, District Judge for the U.S. District *

Court for the Western District of Michigan, sitting by designation.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAREN LOGAN,

Plaintiff-Appellant,

v.

U.S. BANK NATIONAL ASSOCIATION,

as Trustee,

Defendant-Appellee.

No. 10-55671

D.C. No.

2:09-cv-08950-

MMM-PLA

OPINION

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

January 10, 2013—Pasadena, California

Filed July 16, 2013

Before: M. Margaret McKeown and Milan D. Smith, Jr.,

Circuit Judges, and Robert Holmes Bell, District Judge.*

Opinion by Judge McKeown
2 LOGAN V. U.S. BANK

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Protecting Tenants at Foreclosure Act

Affirming the dismissal of a complaint seeking damages

and injunctive relief against a bank that filed an unlawful

detainer action against the tenant of a former owner of

foreclosed property, the panel held that there is no private

right of action under the Protecting Tenants at Foreclosure

Act of 2009.

The panel held that, despite the bank’s voluntary

dismissal of the unlawful detainer action, the appeal was not

moot because the bank did not show that it was absolutely

clear that the allegedly wrongful eviction could not

reasonably be expected to recur.

Agreeing with the Third Circuit, the panel held that

abstention under Younger v. Harris, 401 U.S. 37 (1971), from

the exercise of jurisdiction over the claim for injunctive relief

was not warranted because the state detainer action did not

implicate important state interests.

Finally, the panel held that the tenant did not have a

cognizable claim under the Protecting Tenants at Foreclosure

Act because the Act does not, either explicitly or by

implication, evince a congressional intent to create a private

right of action.
LOGAN V. U.S. BANK 3

COUNSEL

Jay D. Trickett (argued), Arne D. Wagner, and James A.

Quadra, Calvo & Clark, LLP, San Francisco, California, for

Plaintiff-Appellant.

Thomas H. Dupree, Jr. (argued), Gibson, Dunn & Crutcher

LLP, Washington, D.C.; Theane Evangelis Kapur, Andrew G.

Pappas, Gibson, Dunn & Crutcher LLP, Los Angeles,

California; John M. Sorich, S. Christopher Yoo, and Jenny L.

Merris, Adorno Yoss Alvardo & Smith, Santa Ana,

California, for Defendant-Appellee.

Kent Qian, National Housing Law Project, Oakland,

California; Samantha Tuttle, Sargent Shriver National Center

on Poverty Law, Chicago, Illinois, for Amicus Curiae

National Housing Law Project, Sargent Shriver National

Center on Poverty Law, Public Justice Center, National Law

Center on Homelessness and Poverty, Tenants Together,

Legal Services of Northern California, Housing and

Economic Rights Advocates, Housing Umbrella Group, and

Community Legal Services.

OPINION

McKEOWN, Circuit Judge:

We consider here an issue of first impression—whether

the Protecting Tenants at Foreclosure Act of 2009 (“PTFA”

or “the Act”) provides a private right of action. Pub. L. No.

111-22, § 701–04, 123 Stat. 1632, 1660–62 (2009). Karen

Logan sought injunctive relief and damages against U.S.

Bank National Association (“US Bank”) after it filed an
4 LOGAN V. U.S. BANK

 We treat facts alleged in Logan’s complaint as true for purposes of 1

evaluating the dismissal for lack of subject matter jurisdiction. Whisnant

v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005). Consequently, we

do not address the factual dispute arising from US Bank’s contention that

Logan was married to the former owner at the time of the foreclosure and

thus not a “bona fide tenant” protected by the PTFA.

unlawful detainer action against her in state court without

giving 90 days notice to vacate the foreclosed property as

required by the Act. Although we disagree with the district

court’s abstention from exercising jurisdiction over Logan’s

injunctive relief claim under Younger v. Harris, 401 U.S. 37

(1971), we nevertheless affirm dismissal of the complaint

because the Act does not create a private right of action

allowing Logan to enforce its requirements.

BACKGROUND

Logan claims that she was the tenant of the former owner

of a property located in Westlake Village, California. US 1

Bank took title to the property at foreclosure in June 2009.

According to Logan, US Bank served her with a three-day

notice of termination and then immediately initiated an

unlawful detainer action in Los Angeles Superior Court.

Logan alleges that these actions contravened the PTFA,

which required US Bank to serve a 90-day notice of

termination prior to eviction.

After the unlawful detainer action was initiated in June

2009, Logan filed a demurrer raising the PTFA issue, but the

demurrer was overruled. Logan twice attempted, albeit

unsuccessfully, to remove the unlawful detainer action to

federal court.
LOGAN V. U.S. BANK 5

Logan filed her action in federal court in December 2009,

seeking “temporary, preliminary, and permanent injunctive

relief compelling obediance [sic] to the Federal Law,” as well

as damages. The district court dismissed the complaint,

concluding that Younger v. Harris required it to abstain from

exercising jurisdiction because Logan sought to enjoin an

action that was pending in state court at the time she filed her

case in federal court. The district court further reasoned that

it did not have subject matter jurisdiction over Logan’s claim

for damages under the PTFA because the Act does not create

a private right of action.

ANALYSIS

I. MOOTNESS

As a threshold matter, we address whether Logan’s appeal

is moot given US Bank’s voluntary dismissal of the unlawful

detainer action in February 2010, just two months before she

filed this appeal. Article III of the Constitution limits federal

courts to the adjudication of actual, ongoing cases or

controversies between litigants. If a “live” controversy

ceases to exist because of changed circumstances after the

complaint is filed, the claim is moot and no longer justiciable.

Am. Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010,

1016 (9th Cir. 2006). However, when the basis for mootness

is defendant’s voluntary conduct, a federal court is not

“deprive[d] . . . of its power to determine the legality of the

practice,” leaving the defendant “free to return to [its] old

ways.” Friends of the Earth, Inc. v. Laidlaw Envtl. Serv.,

Inc., 528 U.S. 167, 189 (2000) (internal quotation marks and

citations omitted). Rather, the defendant must “bear[] the

formidable burden of showing that it is absolutely clear the

allegedly wrongful behavior could not reasonably be
6 LOGAN V. U.S. BANK

expected to recur.” Id. at 190 (citing United States v.

Concentrated Phosphate Export Ass’n., 393 U.S. 199, 203

(1968)).

US Bank has not met this formidable burden. Its

voluntary dismissal of the unlawful detainer action without

prejudice does not make it “absolutely clear” that the alleged

wrongful eviction “could not reasonably be expected to

recur.” Id. The bank has offered no evidence or reassurance

that it either could not or would not reinitiate the unlawful

detainer action against Logan at another time, should she

remain in possession of the property. Additionally, even if

the request for injunctive relief were moot, Logan’s pursuit of

monetary relief ensures that the case “remains definite and

concrete, touching the legal relations of parties having

adverse legal interests.” Havens Realty Corp. v. Coleman,

455 U.S. 363, 371 (1982) (internal quotation marks and

citation omitted). Dismissal of the state unlawful detainer

proceedings did not moot Logan’s claim.

II. YOUNGER ABSTENTION

As a general rule, a federal court has a “virtually

unflagging obligation” to adjudicate controversies properly

before it. Deakins v. Monaghan, 484 U.S. 193, 203 (1988)

(internal quotation marks and citation omitted). In carrying

out this duty, federal courts “may well affect, or for practical

purposes pre-empt” a pending state court action, but “there is

no doctrine that . . . the pendency of state judicial proceedings

excludes the federal courts.” New Orleans Pub. Serv. Inc.

(“NOPSI”) v. Council of New Orleans, 491 U.S. 350, 373

(1989). To the contrary, a pending action in state court is

generally “no bar to proceedings concerning the same matter

in the Federal court having jurisdiction.” Colo. River Water
LOGAN V. U.S. BANK 7

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)

(quoting McClellan v. Carland, 217 U.S. 268, 282 (1910)).

Against this backdrop, the Supreme Court has carved out

an “‘extraordinary and narrow exception.’” Colo. River

Water Conservation, 424 U.S. at 813 (quoting Cnty. of

Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188–89

(1959)). In Younger v. Harris, the Supreme Court held that

a federal court may not interfere with a pending state criminal

prosecution absent extraordinary circumstances. 401 U.S.

43–54. This principle has also been extended to limited

classes of civil proceedings. See NOPSI, 491 U.S. at 367–68.

For example, in Middlesex County Ethics Committee v.

Garden State Bar Association, 457 U.S. 423, 432 (1982), the

Supreme Court applied Younger abstention to state attorney

disciplinary proceedings, but was careful to limit its

application in the non-criminal context to those cases where

(1) there is an ongoing state proceeding, (2) the state

proceeding implicates important state interests, and (3) the

state proceeding provides an adequate opportunity to raise

federal questions. Interpreting the Supreme Court’s directive,

the Ninth Circuit has emphasized another criterion: (4) that

the federal action would enjoin the state proceeding or have

the practical effect of doing so. San Jose Silicon Valley

Chamber of Commerce Political Action Comm. v. City of San

Jose, 546 F.3d 1087, 1092 (9th Cir. 2008). All four elements

must be satisfied to warrant abstention. AmerisourceBergen

Corp. v. Roden, 495 F.3d 1143, 1148 (9th Cir. 2007).

US Bank’s unlawful detainer action meets three of the

four requirements. To begin, there was an ongoing

proceeding in state court when Logan filed the federal action

in December 2009. Although US Bank later voluntarily

dismissed the state action without prejudice in February 2010,
8 LOGAN V. U.S. BANK

the relevant date for evaluating abstention is the date the

federal action is filed. Gilbertson v. Albright, 381 F.3d 965,

969 n.4 (9th Cir. 2004) (en banc); Kitchens v. Bowen,

825 F.2d 1337, 1341 (9th Cir. 1987) (“[T]he critical question

is not whether the state proceedings are still ongoing, but

whether the state proceedings were underway before

initiation of the federal proceedings.”) (internal quotation

marks and citation omitted). Second, Logan had the

opportunity to litigate her federal question in state court.

Although she was unsuccessful, the pertinent inquiry in the

abstention context is whether plaintiffs’ federal claims “could

have been raised in the pending state proceedings.” Moore v.

Sims, 442 U.S. 415, 425 (1979). Logan also meets the third

prong: The purpose of her federal action is either to enjoin

the state proceeding directly or to have the practical effect of

doing so by limiting US Bank’s ability to pursue its state

court action.

Despite satisfying these three requirements, abstention is

not warranted because the state unlawful detainer action does

not implicate “important state interests.” Notwithstanding its

apparent breadth, that tag line is not an invitation to abstain

simply because a suit implicates a state law, even one

involving a traditional state concern. While recognizing

important state interests in a number of civil proceedings,

“neither we nor the Supreme Court has held Younger to apply

generally to ordinary civil litigation.” Potrero Hills Landfill,

Inc. v. Cnty. of Solano, 657 F.3d 876, 882 (9th Cir. 2011). In

Middlesex, the Supreme Court offered three types of civil

proceedings in which a state might have a vital interest: noncriminal proceedings that “bear a close relationship to

proceedings criminal in nature,” “[p]roceedings necessary for

the vindication of important state policies,” and

“[p]roceedings necessary . . . for the functioning of the state
LOGAN V. U.S. BANK 9

 See, e.g., Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc.,

2

477 U.S. 619 (1986) (pending administrative proceeding in which the state

civil rights commission was enforcing its employment anti-discrimination

laws); Middlesex, 457 U.S. 423 (pending disciplinary proceeding in which

the local county ethics committee was maintaining the professional

conduct of the attorneys it licenses); Moore v. Sims, 442 U.S. 415 (1979)

(pending state proceeding in which the Texas Department of Human

Resources was enforcing its child abuse laws); Trainor v. Hernandez,

431 U.S. 434 (1977) (pending suit in which the Illinois Department of

Public Aid sought the return of welfare payments allegedly wrongfully

received); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) (pending state

nuisance proceeding instituted by sheriff and prosecuting attorney).

 See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13–14 (1987) 3

(holding that a federal court may not enjoin execution of a state court

judgment pending appeal of that judgment to a state appellate court);

Juidice v. Vail, 430 U.S. 327, 335 (1977) (holding that a federal court may

not enjoin the state’s contempt process because “[t]he contempt power lies

at the core of the administration of a State’s judicial system”).

judicial system.” 457 U.S. at 432. The first two categories

implicate the state’s executive interest and encompass cases

in which the state or an agent of the state is a party “in an

enforcement posture,” Potrero Hills Landfill, 657 F.3d at

883. The third category encompasses cases—including 2

those between private parties—where the operation of the

state judicial system is itself at issue.3

An unlawful detainer action does not fall into any of these

categories. Obviously it does not bear a close relationship to

proceedings that are criminal in nature, nor does it implicate

the functioning of the state judicial system. The only

question for discussion is whether the suit vindicates

important state interests or policies. But the eviction action

does not fit in that category either because it is garden variety

civil litigation between private parties, not a state

enforcement action.
10 LOGAN V. U.S. BANK

 This case is distinct from Goldie’s Bookstore, Inc. v. Superior Court 4

of State of California, 739 F.2d 466, 467–68 (9th Cir. 1984), where a

sublessee brought an action against a California Superior Court, a county

sheriff, a county marshal, and others, seeking a preliminary injunction

against enforcement of a state unlawful detainer judgment. There we held

that California did not have an important interest in enforcing a state

detainer judgment for purposes of Younger abstention. Id. at 470.

Goldie’s Bookstore was later called into question after the Supreme Court

decided in Pennzoil that a state has an important interest in executing state

court judgments. See Lebbos v. Judges of the Superior Court, Santa Clara

Cnty., 883 F.2d 810, 815 n.6 (9th Cir. 1989) (“Our conclusion in [Goldie’s

Bookstore] that the proceedings did not implicate important state interests

appears to have been substantially undermined by the Supreme Court’s

holding in Pennzoil.”) (internal citation omitted). We do not take a

It is not enough that the state court action concerns real

property transfers, leasehold estates, and tenant rights, all of

which are historically the domain of state regulation. “[I]t is

not the bare subject matter of the underlying state law that . . .

determine[s] whether the state proceeding implicates an

‘important state interest’ for Younger purposes.” Potrero

Hills Landfill, 657 F.3d at 884. Instead, “the content of state

laws becomes ‘important’ for Younger purposes only when

coupled with the state executive’s interest in enforcing such

laws” or the state judiciary’s interest in the operation of the

judicial system. Id. at 884–86; see also Cate v. Oldham,

707 F.2d 1176, 1183 (11th Cir. 1983) (“Application of the

Younger doctrine to ongoing state civil proceedings has been

limited to those civil actions in aid of criminal jurisdiction or

involving enforcement-type proceedings in which vital

interests of the state qua state are involved.”). By contrast,

the unlawful detainer action here is simply a private dispute

between two private parties over possession of a property.

The state has not stepped in as a party to enforce its tenancy

laws, and no core aspect of the administration of the state’s

judicial system is at issue. This is not to say that the state 4
LOGAN V. U.S. BANK 11

position on whether US Bank’s unlawful detainer action would implicate

an important state interest if US Bank had already obtained a favorable

judgment and Logan sought to enjoin its enforcement, as was the factual

scenario in Goldie’s Bookstore. Suffice it to say that there is no state court

judgment at issue here, and no concern about interfering with the

execution of state court judgments.

does not have a significant interest in protecting tenants, only

that such interest does not warrant abstention.

Although the district court cited to several district court

decisions holding that “unlawful detainer actions represent a

sufficient state interest to warrant Younger abstention,” we

are not persuaded. Logan v. U.S. Bank Nat’l Ass’n, No. CV

09-08950, 2010 WL 1444878, at *3 (C.D. Cal. April 12,

2010); see, e.g., McGlothin v. Santos, No. 1:08cv1290,

2008 WL 5135996, at *6 (E.D. Cal. Dec. 8, 2008); Hicks v.

Superior Court of Cal., Cnty. of Kern, No. 08-cv-0207,

2008 WL 638544, at *5 (E.D. Cal. March 5, 2008). Those

decisions, like the district court’s decision here, fall prey to

the logic that the state has a significant concern simply

because property law, including eviction, has long been a

state concern. The difficulty with this assumption is that it

would require federal courts to abstain from state litigation in

virtually every area of state law—from consumer protection

to real estate—even where the dispute is purely private. We

agree with the Third Circuit that the regulation of eviction

proceedings “does not implicate an important state interest”

under Younger. Ayers v. Phila. Hous. Auth., 908 F.2d 1184,

1195 n.21 (3d Cir. 1990) (holding that an eviction action

brought by Philadelphia’s city housing authority did not

implicate an important state interest).
12 LOGAN V. U.S. BANK

III. No PRIVATE RIGHT OF ACTION UNDER THE

PROTECTING TENANTS AT FORECLOSURE ACT

Although Logan’s claims are neither moot nor precluded

by Younger, they fail because she has no cognizable claim

under the PTFA. The Supreme Court has repeatedly held that

private rights of action, like substantive federal law itself,

must be created by Congress. See, e.g., Alexander v.

Sandoval, 532 U.S. 275, 286 (2001). Our challenge is to

determine whether the PTFA, either explicitly or by

implication, evinces a congressional intent to create a private

right of action. Touche Ross & Co. v. Redington, 442 U.S.

560, 568 (1979). Without clear evidence of such intent,

courts may not create a cause of action “no matter how

desirable . . . as a policy matter, or how compatible with the

statute.” Sandoval, 532 U.S. at 286–87. This issue is a

question of first impression for this court, but a number of

district courts within this circuit have held that there is no

such right. See, e.g., Wells Fargo Bank v. Lapeen, No. C11-

01932, 2011 WL 2194117, at *1 (N.D. Cal. June 6, 2011)

(concluding that “the PTFA only provides tenants with

federal defenses to eviction but does not create a federal

ejectment claim or any private right of action”); Nativi v.

Deutsche Bank Nat’l Trust Co., No. 09-06096, 2010 WL

2179885, at *2–5 (N.D. Cal. May 26, 2010) (holding that the

PTFA does not provide for an implied private right of action).

We conclude that the statute neither explicitly nor impliedly

creates a private right of action allowing Logan to enforce the

PTFA.

Section 702(a) of the PTFA provides:

In the case of any foreclosure on a

federally-related mortgage loan or on any
LOGAN V. U.S. BANK 13

dwelling or residential real property after the

date of enactment of this title, any immediate

successor in interest in such property pursuant

to the foreclosure shall assume such interest

subject to—

(1) the provision, by such successor in interest

of a notice to vacate to any bona fide tenant at

least 90 days before the effective date of such

notice; and

(2) the rights of any bona fide tenant, as of the

date of such notice of foreclosure—

(A) under any bona fide lease entered into

before the notice of foreclosure to occupy

the premises until the end of the

remaining term of the lease, except that a

successor in interest may terminate a lease

effective on the date of sale of the unit to

a purchaser who will occupy the unit as a

primary residence, subject to the receipt

by the tenant of the 90 day notice under

paragraph (1); or

(B) without a lease or with a lease

terminable at will under state law, subject

to the receipt by the tenant of the 90 day

notice under subsection (1).

PTFA § 702(a).

The parties acknowledge that the statute does not

explicitly create a private cause of action because nothing in
14 LOGAN V. U.S. BANK

the text of § 702(a) references the availability of any action

to enforce the statute’s provisions, describes a forum in which

an enforcement suit may be brought, or identifies a plaintiff

for whom such a forum is available. Accordingly, any private

right of action within § 702(a) must be implied from the

statute’s language, structure, context, and legislative history.

See Opera Plaza Residential Parcel Homeowners Ass’n v.

Hoang, 376 F.3d 831, 836 (9th Cir. 2004).

In Cort v. Ash, the Supreme Court identified four factors

that are relevant for determining whether a private remedy is

implicit in a statute not expressly providing one: (1) whether

the plaintiff is “one of the class for whose especial benefit the

statute was enacted”; (2) whether there is “any indication of

legislative intent, explicit or implicit, either to create such a

remedy or to deny one”; (3) whether an implied private cause

of action for the plaintiff is “consistent with the underlying

purposes of the legislative scheme”; and (4) whether the

cause of action is “one traditionally relegated to state law . . .

so that it would be inappropriate to infer a cause of action

based solely on federal law.” 422 U.S. 66, 78 (1975)

(internal quotation marks and citations omitted). The Cort

test replaced the understanding of private rights of action that

had previously held sway—that “‘it [was] the duty of the

courts to be alert to provide such remedies as are necessary to

make effective the congressional purpose’ expressed by a

statute.” Sandoval, 532 U.S. at 287 (quoting J.I. Case Co. v.

Borak, 377 U.S. 426, 433 (1964)). Cort represented a

“retreat[] from [the Supreme Court’s] previous willingness to

imply a cause of action where Congress ha[d] not provided

one.” Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 67 n.3

(2001).
LOGAN V. U.S. BANK 15

 We also point out that the validity of the fourth Cort factor—whether 5

the cause of action is one traditionally relegated to state law—has been

called into question. First Pac. Bancorp, Inc. v. Helfer, 224 F.3d 1117,

1127 (9th Cir. 2000). Regardless, considering it would not alter our

conclusion. Traditionally, leases and eviction proceedings are uniquely

state law matters such that “it would be inappropriate to infer a cause of

action based solely on federal law.” Cort, 422 U.S. at 78.

In later cases, the Supreme Court essentially collapsed the

Cort test into a single focus: “[t]he central inquiry remains

whether Congress intended to create, either expressly or by

implication, a private cause of action.” Touche Ross,

442 U.S. at 575; see also Cal. v. Sierra Club, 451 U.S. 287,

293 (1981) (“[T]he ultimate issue is whether Congress

intended to create a private right of action.”); Thompson v.

Thompson, 484 U.S. 174, 189 (1988) (Scalia, J., concurring)

(“[W]e effectively overruled the Cort v. Ash analysis in

[Touche Ross] . . . converting one of its four factors

(congressional intent) into the determinative factor. . . .”)

(emphasis in original). Nonetheless, our court has found the

four factor test helpful, and has continued to employ it to

“guide [the] central project of discerning Congress’s intent.”

Orkin v. Taylor, 487 F.3d 734, 739 (9th Cir. 2007).

Because the Supreme Court has elevated intent into a

supreme factor, we start there and do not feel constrained by

the Cort framework. As with any case involving 5

congressional intent, we presume that Congress expressed its

intent through the statutory language it chose. Conn. Nat’l

Bank v. Germain, 503 U.S. 249, 253–54 (1992). We begin

our search for congressional intent with the language and

structure of the statute, and then look to legislative history

only if the language is unclear, Alarcon v. Keller Indus., Inc.,

27 F.3d 386, 389 (9th Cir. 1994), or if there is a clearly

expressed contrary intention in the legislative history that
16 LOGAN V. U.S. BANK

may overcome the strong presumption that the statutory

language represents congressional intent, Flores-Arellano v.

I.N.S., 5 F.3d 360, 362 (9th Cir. 1993).

Nothing in the language and structure of § 702(a) reflects

a clear and unambiguous intent to create a private right of

action. See Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002)

(“[C]lear and unambiguous terms” are “required for Congress

to create new rights enforceable under an implied private

right of action.”). The difficulty for Logan is that the PTFA

focuses on the “immediate successor in interest” in the

property—in other words, the regulated party. Section 702(a)

is framed in terms of the obligations imposed on the regulated

party (“any immediate successor in interest . . . shall assume

such interest subject to . . .”), while the “bona fide tenant” is

referenced only as an object of that obligation. Statutes

containing general proscriptions of activities or focusing on

the regulated party rather than the class of beneficiaries

whose welfare Congress intended to further “do[] not indicate

an intent to provide for private rights of action.” Sierra Club,

451 U.S. at 294; see also Sandoval, 532 U.S. at 289.

Nor does the PTFA place Logan into a class for whose

“especial” benefit the statute was enacted. An “especial”

beneficiary is not “simply [one] who would benefit from the

Act”—otherwise, the victim of any crime would be an

especial beneficiary of the criminal statute’s proscription.

Sierra Club, 451 U.S. at 293–94 (emphasis in original). It is

true that tenants would benefit from the Act’s requirements

to provide 90 days’ notice to vacate and to allow tenants to

continue occupying the premises until the end of the

remaining lease term, but the conferral of benefits is not

enough. Id. at 294 (“The question is not simply who would

benefit from the Act, but whetherCongress intended to confer
LOGAN V. U.S. BANK 17

federal rights upon those beneficiaries.”) (citation omitted).

Section 702’s focus on the parties regulated rather than the

individuals ultimately benefited by the statute weighs against

implication of a private right of action.

Logan argues that the title of the statute—“Protecting

Tenants at Foreclosure Act of 2009”—evinces sufficient

congressional intent to create a federal right in favor of

tenants of foreclosed properties. But, here, the title does no

work in divining intent. Though a statute’s title “can be used

to resolve[] ambiguity,” it “cannot control the plain meaning

of a statute.” Oregon Pub. Util. Comm’n v. I.C.C., 979 F.2d

778, 780 (9th Cir. 1992).

Looking to the overall statutory scheme, we discover that

PTFA is part of a larger framework in which Congress did

provide a private cause of action for a different specified

claim. The PTFA was enacted as part of the Helping

Families Save Their Homes Act of 2009 (“the Homes Act”).

Pub. L. No. 111-22, § 1(a), 123 Stat. 1632, 1632 (2009)

(Division A, under which the PTFA appears as Title VII,

§§ 701–04, “may be cited as the ‘Helping Families Save

Their Homes Act of 2009.’”). Section 404(a) of the Homes

Act added a notice requirement to the Truth in Lending Act,

15 U.S.C. § 1641, under which a new creditor must notify the

borrower in writing of certain information no later than 30

days after a mortgage loan is transferred or assigned.

§ 404(a), 123 Stat. at 1658. Section 404(b) then explicitly

amended the private right of action provision of the Truth in

Lending Act, 15 U.S.C. § 1640(a), allowing “any person” to

sue a creditor who fails to comply with the newly enacted

notice requirement or other requirements under the Act for

damages. § 404(b), 123 Stat. at 1658.
18 LOGAN V. U.S. BANK

No such language accompanies § 702. Where a statutory

scheme contains a particular express remedy or remedies, “a

court must be chary of reading others into it.” Transamerica

Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979).

Because Congress included an express provision for private

enforcement under one section ofthe Homes Act, it is “highly

improbable that Congress absentmindedly forgot to mention

an intended private action” in the PTFA section. Id. at 20

(internal quotation marks and citation omitted); see also In re

Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1232 (9th

Cir. 2008) (“Where analogous provisions expressly provide

for a private right of action, we must infer that Congress did

not intend to create a private right of action in the statutory

section at issue.”) (internal quotation marks and citation

omitted).

The legislative history of § 702(a) reinforces our decision

not to imply a private right of action. Like the statutory

language itself, the legislative history emphasizes compliance

by landlords and foreclosing lenders. Then-Senator John

Kerry, the bill’s primary drafter, proclaimed: “A landlord

should not be allowed to come in, change the locks, and force

out tenants who were there completely legitimately, with an

expectation that they were coming home to their same old

home.” 155 Cong. Rec. S5111 (daily ed. May 5, 2009).

After passage of the legislation, Senator Kerry praised the

Federal Reserve and the Department of Housing and Urban

Development for quickly issuing notifications outlining “how

regulated institutions are expected to comply with the terms

of the act.” 155 Cong. Rec. S8978 (daily ed. Aug. 6, 2009).

Although the legislative history underscores that the

statute’s ultimate purpose is to benefit tenants, see, e.g.,

155 Cong. Rec. S5097 (daily ed. May 5, 2009) (“I am
LOGAN V. U.S. BANK 19

offering this amendment to address the needs of renters in

properties that have been foreclosed.”) (statement of Sen.

John Kerry), it is silent as to any right or remedy for tenants.

Where the statutory language and structure do not indicate a

congressional intent to create a private right of action, “silent

legislative history precludes further inquiry.” Helfer,

224 F.3d at 1125 (citing Texas Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 639 (1981)). When the PTFA

was amended in July 2010 to clarify the statute and extend its

application, once again Congress wassilent—both in the text

and in legislative history—with regard to any private right of

action. Dodd-Frank Wall Street Reform and Consumer

Protection Act, Pub. L. 111-203, § 1484, 124 Stat. 1376, 2204

(2010). By the time of the amendment, several courts had

determined that no private remedy existed under the PTFA.

See, e.g., Claremont 1st Street Investors v. Espinoza, No.

CV10-3532, 2010 WL 2486804 (C.D. Cal. June 15, 2010)

(concluding that there is no private right of action); Nativi,

2010 WL 2179885 (same); Bank of America, N.A. v. Owens,

903 N.Y.S.2d 667 (Rochester City Ct. 2010) (same). We

must presume that Congress acted with awareness of these

judicial decisions. See United States v. Alvarez-Hernandez,

478 F.3d 1060, 1065 (9th Cir. 2007).

Finally, we note that the PTFA’s nationwide federal

policy and requirements are not rendered unenforceable by

the absence of a federal private right of action. See Helfer,

224 F.3d at 1126 (explaining that where Congress or an

administrative agency provided no explicit enforcement

mechanism, “it is appropriate to infer that Congress did not

intend to enact unenforceable requirements”). The PTFA is

framed in terms of “protections” for tenants, suggesting that

it was intended to provide a defense in state eviction

proceedings rather than a basis for offensive suits in federal
20 LOGAN V. U.S. BANK

court. Notice requirements are typically elements of unlawful

detainer actions that can be employed to challenge a state

eviction proceeding by showing that the notice requirement

was not met. See, e.g., Cal. Code Civ. Proc. § 1161

(requiring three days’ notice to be served on the tenant in

writing containing specified information); Nev. Rev. Stat.

§ 40.2516 (requiring five days’ notice to be served on the

tenant in writing). Amici argue that defense of a state

eviction action would be inadequate to enforce the PTFA in

states that allow the purchaser at a foreclosure sale to remove

a tenant without judicial process. While we are troubled by

such a possibility, we have not been presented with concrete

facts in this case that allow us to evaluate that scenario. Nor

can this policy consideration override congressional intent not

to incorporate a private right of action. The intent of

Congress remains the “ultimate issue.” Thompson, 484 U.S.

at 179. Because we cannot infer a congressional intent to

create a private right of action from the language of the

statute, the statutory structure, or any other source, “the

essential predicate for implication of a private remedy simply

does not exist.” Id. (internal quotation marks and citation

omitted). The district court’s dismissal of Logan’s complaint

is AFFIRMED.