                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 17 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PATRICK WHITE and NELDA WHITE,                   No.   16-15549

              Plaintiffs-Appellants,             DC No. CV 15-17775 MCE

 v.

JPMORGAN CHASE & CO. and                         MEMORANDUM*
SELECT PORTFOLIO SERVICING,
INC.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                      Argued and Submitted October 13, 2017
                            San Francisco, California

Before:      TASHIMA and BYBEE, Circuit Judges, and LEITMAN,** District
             Judge.

      Patrick and Nelda White (the “Whites”) appeal the dismissal without leave

to amend of their first amended complaint (“FAC”), which alleges that JPMorgan

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Chase Bank, N.A. (“Chase”) and Select Portfolio Servicing, Inc. (“SPS”) were

liable for fraud and promissory estoppel based on their representations about the

status of the Whites’ home loan modification application.

      The FAC alleges that Chase employees twice called the Whites and said

that, based on information Mr. White provided over the phone, the Whites were

“eligible” and “qualified” for a loan modification – subject to verification of the

information Mr. White provided. Each time, the Whites completed Chase loan

modification applications and sent additional documents. Each time, Chase denied

the applications. The Whites also allege that an SPS representative said the Whites

were “eligible” and “qualified” for a loan modification, subject to verification of

the information Mr. White provided over the phone. SPS then denied the Whites’

loan modification application.

      The district court dismissed the Whites’ claims without leave to amend

because the Whites allege only that Chase and SPS made conditional statements

and fail to allege the fraudulent circumstances with requisite particularity. See Fed.

R. Civ. P. 9(b). The court also concluded that the Whites’ conditional allegations

render amendment futile.

      We review the dismissal of a complaint de novo. Levitt v. Yelp! Inc., 765

F.3d 1123, 1126 (9th Cir. 2014). We review the district court’s denial of leave to


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amend for abuse of discretion. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d

522, 532 (9th Cir. 2008).

      1.     The district court properly dismissed the FAC because the Whites do

not show justifiable reliance. A claim of fraud arises from a misrepresentation

made with knowledge of its falsity – or without reasonable grounds for its truth, if

the claim is for negligent misrepresentation, Ragland v. U.S. Bank N.A., 147 Cal.

Rptr. 3d 41, 54 (Ct. App. 2012) – that is intended to and actually induces justifiable

reliance, causing damages. Kearns v. Ford Motor Co., 567 F.3d 1120, 1126 (9th

Cir. 2009). The Whites allege that they justifiably relied on Chase’s and SPS’

statements that they were “eligible” and “qualified” for a modification. But that is

not what they relied on. Rather, the Whites relied on their own optimistic

assumption that they would unconditionally receive a loan modification simply

because they were told by phone that they were “eligible” and “qualified.” But that

assumption was unsupported by Chase’s and SPS’ statements, which never

guaranteed a modification, which did not specify the material terms of a

modification, and which expressly conditioned a modification on verification of

the Whites’ orally provided information.




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      Nor were Chase’s and SPS’ alleged statements “clear and unambiguous”

promises sufficient to state claims for promissory estoppel. U.S. Ecology, Inc. v.

State, 28 Cal. Rptr. 3d 894, 905 ( Ct. App. 2005).

      2.     Lastly, the district court did not abuse its discretion in denying the

Whites further leave to amend. Although the district court should ordinarily grant

a plaintiff “at least one chance to amend a deficient complaint,” Nat’l Council of

La Raza v. Cegavske, 800 F.3d 1032, 1041 (9th Cir. 2015), leave to amend is

unnecessary if amendment would be futile. Eminence Capital, LLC v. Aspeon,

Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing Foman v. Davis, 371 U.S. 178,

182 (1962)). The Whites did not even request leave to amend in district court. At

oral argument before this court, the Whites did not argue they could allege that

Chase or SPS represented, unconditionally, that the Whites had in fact received a

loan modification. The Whites also cannot amend the FAC to allege that the Home

Affordable Modification Program (“HAMP”) applies to their loan because they

were facially ineligible for HAMP, as being over HAMP’s upper loan limit. Majd

v. Bank of Am., N.A., 197 Cal. Rptr. 3d 151, 157 (Ct. App. 2015). Therefore,

amendment would be futile.

      The judgment of the district court is AFFIRMED.




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