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UNITED STATES COURT OF APPEALS NINTH CIRCUIT No. 12-56892 HELEN GALOPE, on behalf of herself and all others similarly situated, 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. d/b/a HOMEQ SERVICING; OCWEN LOAN SERVICING, LLC, and DOES 4 through 10, Inclusive, Defendants-Appellees. Appeal from the U.S. District Court for Central California, Santa Ana The Honorable Cormac J. Carney District Court Case 8:12-cv-00323-CJC-RNB ANSWERING BRIEF OF APPELLEES BARCLAYS BANK PLC and BARCLAYS CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING

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CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1(a) of the Federal Rules of Appellate Procedure, Appellee Barclays Bank PLC hereby states that it is a wholly owned subsidiary of Barclays PLC and that no publicly held corporation owns more than 10% of Barclays Bank PLCs stock. Appellee Barclays Capital Real Estate Inc., d/b/a HomEq Servicing, hereby states that it is a wholly owned subsidiary of Barclays Capital Real Estate Holdings Inc. and that its ultimate parent is Barclays PLC, a publicly held company.

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TABLE OF CONTENTS Page JURISDICTION......................................................................................................... 1 ISSUES PRESENTED............................................................................................... 1 STATEMENT OF THE CASE .................................................................................. 2 A. B. C. Introduction ........................................................................................... 2 Procedural Background ......................................................................... 4 Statement of Facts ................................................................................. 5 1. 2. Background ................................................................................. 5 The District Court Dismissed Appellants Complaint ................ 8

STANDARD OF REVIEW ....................................................................................... 9 ARGUMENT ........................................................................................................... 10 I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANT LACKED ARTICLE III STANDING TO ASSERT ANY OF HER CLAIMS ............................................................................... 10 THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANT LACKED STANDING TO ASSERT HER CALIFORNIA STATUTORY CLAIMS ..................................................... 14 THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANTS FAL CLAIM WAS TIME BARRED ................................ 17 THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANTS AIDING AND ABETTING CLAIM FAILED FOR LACK OF A VIABLE PRIMARY TORT CLAIM ..................................... 18 THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANT LACKED STANDING TO ASSERT HER CLAIMS FOR BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING .......................................................................................... 19 THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANT FAILED TO PLEAD THE BASIC ELEMENTS OF COMMON LAW FRAUD ........................................................................... 20

II.

III. IV.

V.

VI.

CONCLUSION ....................................................................................................... 21

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TABLE OF AUTHORITIES Page(s) FEDERAL CASES Benson v. J.P. Morgan Chase Bank, N.A., 673 F.3d 1208 (9th Cir. 2012) .............................................................................. 9 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977) ............................................................................................ 13 Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011) ...................................................................... 18, 19 Conservation Nw. v. Sherman, No. 1135729, 2013 WL 1760807 (9th Cir. Apr. 25, 2013) .............................. 19 DaimlerChrysler v. Cuno, 547 U.S. 332 (2006) ............................................................................................ 11 Gest v. Bradbury, 443 F.3d 1177 (9th Cir. 2006) ............................................................................ 10 Gonzalez v. Kinro, Inc., 473 Fed. Appx 768 (9th Cir. 2012) ................................................................... 14 Kaing v. Pulte Homes, Inc., No. 09-5057, 2010 WL 625365 (N.D. Cal. Feb. 18, 2010) ................................ 19 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) .............................................................................. 10 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ......................................................................................10, 11 Recinto v. U.S. Dept of Veterans Affairs, 706 F.3d 1171 (9th Cir. 2013) ............................................................................ 19 Rubio v. Capital One Bank, 613 F.3d 1195 (9th Cir. 2010) ............................................................................ 14 Rubke v. Capitol Bancorp Ltd., 551 F.3d 1156 (9th Cir. 2009) .............................................................................. 9

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TABLE OF AUTHORITIES (continued) Page(s) Sanders v. Brown, 504 F.3d 903 (9th Cir. 2007) .............................................................................. 10 TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820 (9th Cir. 2011) .............................................................................. 17 United States v. Socony-Vacuum Oil Co., 310 US 150 (1940) .............................................................................................. 16 Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981 (9th Cir. 2009) ................................................................................ 9 CALIFORNIA CASES Bower v. AT&T Mobility, LLC, 196 Cal. App. 4th 1545 (2011) ........................................................................... 14 Casey v. U.S. Bank Natl Assn, 127 Cal. App. 4th 1138 (2005) ........................................................................... 18 Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951 (1997) ........................................................................................ 21 Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) ..................................................................................16, 17 FEDERAL STATUTES 28 U.S.C. 1291 ........................................................................................................ 1 28 U.S.C. 1331 ........................................................................................................ 1 28 U.S.C. 1332 ........................................................................................................ 1 CALIFORNIA STATUTES CAL. BUS. & PROF. CODE 17200 et seq ................................................................. 14

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TABLE OF AUTHORITIES (continued) Page(s) CAL BUS. & PROF. CODE 17204 ............................................................................ 14 CAL. BUS. & PROF. CODE 17500 et seq. ................................................................ 14 CAL. CIV. PROC. 338(a) ......................................................................................... 17 OTHER AUTHORITIES FED. R. APP. P. 30(a)(2) ............................................................................................. 2 Fed. R. Civ. P. 12(b)(1).................................................................................... 1, 9-10 Fed. R. Civ. P. 12(b)(6)....................................................................................1, 9, 10 NINTH CIR. R. 30-1.5 .................................................................................................. 2 U.S. CONST., ART. III ........................................................................................passim

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JURISDICTION The District Court (Hon. Cormac J. Carney) had jurisdiction over this action pursuant to 28 U.S.C. 1332 and 28 U.S.C. 1331. The District Court dismissed Appellants Third Amended Complaint (TAC), filed on July 20, 2012, as to Barclays Bank PLC and Barclays Capital Real Estate Inc., d/b/a HomEq Servicing (collectively, the Barclays Appellees) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. This Court has jurisdiction over this appeal from the final judgment under 28 U.S.C. 1291. ISSUES PRESENTED 1. Whether the District Court correctly dismissed all of Appellants claims premised on the Barclays Appellees alleged manipulation of the London Interbank Offered Rate (LIBOR), for failure to allege any injury attributable to such alleged manipulation, where Appellant (i) defaulted on her adjustable rate mortgage loan while the interest rate was fixedand long before it was to be reset based on a calculation involving LIBORand (ii) thus never made a single loan payment at a rate tied to LIBOR. 2. Whether the District Court correctly dismissed Appellants claims in connection with a loan modification she secured prior to her default, for failure to allege any injury, where documentary evidence establishes that

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Plaintiff received in writing the material terms of the modification, which decreased the amount of her loan payments. STATEMENT OF THE CASE A. Introduction Appellants lengthy submissionsover 60 pages of briefing and an Excerpt of Record well in excess of 2,000 pages1serve only to confuse the straightforward issues before this Court: whether Appellant has adequately alleged injury-in-fact in connection with her various claims sufficient to establish her standing to bring federal and state law claims against Defendants. The District Court correctly concluded that Appellant has not. Appellants principal allegation is that she faces foreclosure because of the alleged manipulation of LIBOR by the Barclays Appellees. But the

allegations of the TAC demonstrate that there is no connection whatsoever between Appellants claimed injury and the Barclays Appellees alleged conduct

Appellants Excerpt of Record is wholly improper; indeed, it hardly qualifies as an excerpt at all. Appellant has compiled hundreds of pages of materials irrelevant to her appeal in clear violation of the Circuit Rules. See CIRCUIT RULE 30-1.5 (The excerpts of record shall not include briefs or other memoranda of law filed in the district court unless necessary to the resolution of an issue on appeal, and shall include only those pages necessary therefor.); see also FED. R. APP. P. 30(a)(2).

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because Appellant defaulted on her mortgage loan when the rate on that loan was fixed, and thus never made a single mortgage payment that was based on any interest rate tied to LIBOR. In the absence of any injury, the District Court properly dismissed Appellants claims for failure to plead standing under either Article III or the California statutes upon which her state law claims are premised. Appellants other allegation before the District Court was that Barclays Capital Real Estate, Inc., d/b/a HomEq Servicing (HomEq), deliberately faxed her loan modification documents that omitted material terms to lull her into believing that she received more favorable terms so that she would continue to pay the modified interest rate without seeking other sources of financing. But Appellant fails to allege that she suffered any injury whatsoever as a result of that purported conduct. Not only were the terms that Appellant claims were missing actually present on the face of the document she admittedly received, but Appellant actually benefitted from the loan modification, which lowered the interest rate on her mortgage loan and significantly reduced her monthly payments. Therefore, even accepting all of the allegations of the TAC as true, Appellant fails to allege any injury traceable to the Barclays Appellees conduct. The District Courts decision should be affirmed.

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B.

Procedural Background Appellant, a resident of Tarzana, California, filed this action in the

United States District Court for the Central District of California on March 1, 2012. (ER 33.) The initial Complaint, which made no mention of LIBOR, named Deutsche Bank National Trust Company, Western Progressive LLP, and John Does 1-10 as Defendants. (ER 33-49.) It was not until Appellant filed the TAC that she referenced LIBOR and named the Barclays Appellees as defendants. The TAC asserted claims against the Barclays Appellees for (i) violation of the Sherman Antitrust Act (Sherman Act), (ii) violation of Californias Business and Professions Code (UCL), (iii) violation of Californias False Advertising Law (FAL), (iv) aiding and abetting in violation of the UCL, (v) breach of the covenant of good faith and fair dealing, and (vi) fraud. (ER 9.) Those claims were based on two sets of factual allegations. First, Appellant based her Sherman Act, UCL, FAL, implied covenant of good faith and fair dealing, and fraud claims on her allegation that the Barclays Appellees (and others) conspired to manipulate LIBOR and thereby injured Appellant. (ER 67273, 682-84, 688-90.) Second, Appellant based her claims for violations of the UCL, FAL, and implied covenant of good faith and fair dealing, as well as her aiding and abetting claim under the UCL, on HomEqs allegedly deliberate

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omission of material terms from the loan modification agreement faxed to her on April 7, 2008. (ER 680-81, 684-85, 688.) On September 26, 2012, the District Court granted summary judgment in favor of the Deutsche Bank Defendants. (ER 18.) On October 11, 2012, the District Court granted the Barclays Appellees motion to dismiss and dismissed the TAC with prejudice. Appellant filed her notice of appeal on October 16, 2012. (ER 1.) C. Statement of Facts 1. Background

In December 2006, Appellant borrowed $522,000 from New Century Mortgage Corporation and executed an Adjustable Rate Note (the Note) with Barclays Capital Real Estate Inc., d/b/a HomEq, as the designated loan servicer. (ER 656 15, 18.) Pursuant to Section 2 of the Note, Appellant agreed to pay interest at a yearly rate of 8.775%, which would be subject to change in accordance with Section 4 of [the] Note. (ER 2083; see also ER 9.) Section 4(a) of the Note provides that Appellants interest rate may change on the first day of January, 2009 and on the same day of every 6th month thereafter. Each date on which my interest rate could change is called an Interest Change Date. (ER 2084 (emphasis added).) Section 4 further provides that, [b]eginning on the first Interest Change Date, Appellants new interest rate would be calculated by adding

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6.150% to the average of Interbank offered rates for six-month dollar deposits in the London market (LIBOR) as published in The Wall Street Journal. (Id.) Appellant thus agreed in writing that the interest rate on the Note (i) would be fixed at 8.775% for the first two years (from December 2006 through December 2008), and (ii) would adjust on January 1, 2009, based on a calculation referencing LIBOR. (ER 2084; see also ER 659 43-45.) In April 2007, Appellee HomEq began to service the loan and, by April 2008, Appellant had become delinquent in her loan obligations. (ER 9-10, 656 18, 660 53.) To cure her default, Appellant obtained a loan modification agreement (the Modification Agreement) on April 7, 2008more than seven months before January 1, 2009, when the interest rate for her Note was scheduled to adjust to a rate linked to LIBOR. (ER 10, 660 54-57, 695-97.) Section 1(c) of the Modification Agreement postponed the first Interest Rate Change date by more than four years, providing that [t]he date on which the interest rate change is next scheduled to occur is hereby changed to 04/01/2013. (ER 695.)

Accordingly, Appellants interest rate was not scheduled to adjust to a rate linked to LIBOR until April 1, 2013. (Id.) When Appellant executed the Modification Agreement on April 17, 2008, her interest rate decreased from 8.775% to 5.500%, thereby reducing her monthly mortgage payments by nearly $800, from $3,817.13 to $3,027.02. (ER 14, 697.)

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According to the TAC, a portion of the Modification Agreement that Appellant received from Appellee HomEq was missing because the fax transmission contained two legal sized pages, purportedly sandwiched between letter sized pages, but Appellants fax machine printed all pages on letter sized paper. (ER 10, 663 75-76.) Consequently, Appellant alleges that Section 1(d) of the Modification Agreement was cut off at the bottom of the first page. (ER 662 71-73.) Appellant allegedly contacted a representative of the Barclays

Appellees about the discrepancy she noticed in Section 1(d), but has never alleged that she demanded a complete copy of the document. (ER 664 81-87.)

Although Appellant claims that, on some unspecified date after she executed the Modification Agreement, she became shocked and concerned that her modification payments may change on April 1, 2013 (Op. Br. at 12; ER 663 74), that fact was fully disclosed in Sections 1(b) and 1(c) of the Modification Agreement, which Appellant admits that she received. (ER 14 n. 4 (citing TAC 71-75); ER 695.) Long before Appellants monthly interest rate was set to change in April 2013, Appellant defaulted on her modified monthly mortgage payments. (ER 664 87-88.) Thereafter, on July 31, 2009, a Notice of Default was recorded on the subject property, and, in January 2010, Appellant filed for Chapter 7 bankruptcy protection. (ER 664-65 88-89.) Because she defaulted prior to

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April 1, 2013, under the relevant agreements, Appellant has never made any payments at a rate linked to LIBOR. After a series of attempts to secure relief in bankruptcy court, Appellant instituted the instant action before the District Court on March 1, 2012. (ER 33.) Appellant named the Barclays Appellees as defendants in the TAC on July 20, 2012. 2. The District Court Dismissed Appellants Complaint.

On October 11, 2012, the Honorable Cormac J. Carney dismissed Appellants claims against the Barclays Appellees in their entirety. The District Court dismissed all claims based on alleged LIBOR manipulation for failure to plead standing under Article III and dismissed Appellants UCL and FAL claims for failure to plead statutory standing. (ER 13-16.) The District Court held that Appellant did not, and could not, allege an injury traceable to the Barclays Appellees alleged LIBOR manipulation due to the simple fact that her interest rate, both in her original loan and the Loan Modification Agreement, have not been affected by LIBOR. (ER 13; see also ER 15-16.) Appellants fraud claim was dismissed both for lack of standing and failure to allege the essential element of injury. (ER 17.) Appellants claims based on the allegedly missing portions of the faxed Modification Agreement were also dismissed for lack of standing. As to

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Appellants UCL claim, the District Court held that (i) the reduced interest rate and lower monthly payments Appellant received pursuant to the Modification Agreement contradicted any claim of injury (ER 14), and (ii) the allegation that Appellant was deprived of notice of the future change in interest rate was directly contradicted by language in the Loan Modification Agreement that [Appellant] admits to having received. (ER 14 n.4.) Appellants FAL claim based on the purportedly missing portions of the faxed Modification Agreement was also dismissed as time barred. (ER 15-16.) Finally, Appellants claim for breach of the covenant of good faith and fair dealing was dismissed for the same reasons as her UCL claims, and Appellants aiding and abetting claim was dismissed for failure to allege a primary violation. (ER 16.) STANDARD OF REVIEW This Court reviews de novo dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Rubke v. Capitol Bancorp Ltd., 551 F.3d 1156, 1161 (9th Cir. 2009). A dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) is likewise reviewed de novo. Benson v. J.P. Morgan Chase Bank, N.A., 673 F.3d 1208, 1211 (9th Cir. 2012). Well-pleaded factual allegations are taken as true and construed in the light most favorable to the plaintiff. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009). However, [c]onclusory allegations and unreasonable

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inferences . . . are insufficient to defeat a motion to dismiss. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). While appellate review of a Rule 12(b)(6) dismissal is generally limited to the contents of the complaint, this Court may consider material which is properly submitted as part of the complaint, or documents upon which the complaint necessarily relies, and whose authenticity . . . is not contested. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citations omitted). Moreover, an appellate court may consider extrinsic evidence in addition to the face of the pleadings when reviewing a Rule 12(b)(1) dismissal. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). ARGUMENT I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANT LACKED ARTICLE III STANDING TO ASSERT ANY OF HER CLAIMS. Article III of the United States Constitution requires a plaintiff to have standing to bring any claim. Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir. 2006). To properly plead Article III standing, a plaintiff must sufficiently allege (i) a concrete and particularized injury, (ii) a causal connection showing that the injury is fairly traceable to the challenged action of the defendant, and (iii) a likelihood that a favorable decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citation and internal quotation omitted). A

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plaintiff invoking federal jurisdiction bears the burden of establishing Article III standing for each claim [she] seeks to press and for each form of relief that is sought. DaimlerChrysler v. Cuno, 547 U.S. 332, 352 (2006) (citation omitted). Dismissal of a complaint for lack of standing is appropriate where, as here, the complaint fails to sufficiently allege a causal connection showing that the injury is fairly traceable to the allegedly wrongful conduct. Lujan, 504 U.S. at 560-61. Appellants claims depend upon her allegations that she has been financially injured in that she has made over $60,000.00 in interest payments based on manipulate [sic] market LIBOR. (ER 691 224; see also ER 672-3, 688.) But contrary to Appellants conclusory allegation, and as the District Court correctly found, the Note and Modification Agreement referenced in the TAC, as well as Appellants own allegations, establish that Appellant never made a single payment at a rate that was tied to LIBOR and, therefore, could not have been injured by the Barclays Appellees alleged manipulation. (ER 13.) First, Section 4(a) of the Note that Appellant executed on December 16, 2006 shows that the initial 8.775% rate was fixed for two years, until January 2009. (ER 2084 (Note).) This fact was further confirmed by Appellants own expert who, in a declaration submitted in opposition to Deutsche Banks motion for summary judgment, observed that the interest rate on Appellants Note is fixed

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for two years and does not become adjustable until after the initial two years. (ER 2067.) Second, in April 2008, long before the rate would become adjustable under the Note, Appellant entered into a Modification Agreement that (i) fixed the interest rate on her loan at 5.500% [e]ffective on 04/01/2008, (ii) established that [t]he date on which the interest change is next scheduled to occur changed to 04/01/2013, and (iii) provided that Appellants fixed interest rate would not adjust to an interest rate linked to LIBOR until April 1, 2013. (ER 695.) Thus, both the Note and Modification Agreement make clear that Appellants interest rate would not be based in any way on LIBOR until April 1, 2013, the date on which her fixed interest rate was to change to a rate linked to LIBOR. (See id.) The District Court properly considered both the Note and Loan Modificationwhich were referenced in the TACand concluded that Appellant lacked Article III standing because neither [Appellant]s original loan [n]or her Loan Modification Agreement have yet required her to pay a monthly interest rate dependent on the LIBOR. Therefore, any alleged manipulation of the LIBOR cannot have harmed [Appellant]. (ER 17; see also ER 13 (In short, [Appellant] could not have suffered harm based on manipulation of the LIBOR because her interest rate was never affected by the LIBOR.).)

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Although Appellant spends a significant portion of her Opening Brief arguing that she has properly alleged antitrust standing, the District Court based its opinion on the threshold issue of whether Appellant had alleged Article III standing and, therefore, did not reach the issue of whether Appellant had alleged antitrust standing, which must be established in antitrust cases in addition to Article III standing.2 Indeed, Appellant never properly alleges any injury at all. Instead, Appellant baldly asserts that she sustained damage as a result of the Barclays Appellees alleged manipulation of LIBOR. (Op. Br. at 59.) But

Appellant does not explain how she was injured by that alleged manipulation, because, as a matter of undisputed fact (and simple logic), she could not have been so injured. Instead, she alleges that she was led to believe that her home loan monthly mortgage payments were based on a LIBOR market interest rate based on market factors outside of Barclays [sic] control and not by Barclays [sic] manipulation. (Id.) But that argument wholly misrepresents the undisputed facts

In any event, because Appellant has failed to establish an injury in fact, she has failed to establish an antitrust injury and, thus, antitrust standing, which is required for any claim under the Sherman Act. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977) (requiring not just injury in fact, but injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants acts unlawful). The District Court did not reach this issue because Appellants lack of Article III standing alone was and remains fatal to her Sherman Act claim.

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in the recordthat Appellant never once made a single loan payment that was tied to LIBORin an attempt to confuse the issues before this Court. (See pp. 5-8, supra.) Such tactics cannot revive Appellants claims, which were properly

dismissed. II. THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANT LACKED STANDING TO ASSERT HER CALIFORNIA STATUTORY CLAIMS. The District Court also properly dismissed Appellants two claims based on violations of California law for lack of statutory standing. Californias Unfair Competition Law (UCL), CAL. BUS. & PROF. CODE 17200 et seq., requires that Appellant allege sufficient facts to demonstrate that she suffered injury in fact and has lost money or property as a result of the alleged unfair business practice. Id. 17204. That is, Appellant must establish that she suffered a pecuniary injury sufficient to constitute an injury in fact under Article III of the Constitution. Rubio v. Capital One Bank, 613 F.3d 1195, 1203-04 (9th Cir. 2010) (citation omitted); see also Gonzalez v. Kinro, Inc., 473 Fed. Appx 768, 769 (9th Cir. 2012) (Section 17204 of Californias Unfair Competition Law incorporates the federal injury in fact standard.). Californias False Advertising Law (FAL), CAL. BUS. & PROF. CODE 17500 et seq., has an identical statutory standing requirement. Bower v. AT&T Mobility, LLC, 196 Cal. App. 4th 1545, 1555 (2011) (Like Section 17200, Section 17500 requires an individual suing

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under the statute to have suffered injury in fact and to have lost money or property as a result of such unfair competition.) (citation and internal quotation omitted). Appellant has failed to establish statutory standing under both the UCL and FAL. Appellants principal alleged injury under the UCL and FAL is again that she paid interest based on an allegedly manipulated LIBOR. (See ER 674-75 138(f) (UCL claim); see also ER 684-85 181-182 (FAL claim).) But, as explained supra, Appellants interest rate was never based on LIBOR because she ceased making payments on her loan long before the first Interest Rate Change Date was to occur. (See pp. 5-8, supra.) Appellants further allegations that she was harmed by the purported missing fax page scheme are also contradicted by the documents referenced in the TAC, as it is undisputed that the Modification Agreement saved Appellant money by reducing her interest rate from 8.775% to 5.500% and reducing her monthly mortgage payment by roughly $800 (from $3,817.13 to $3,027.02) through April 2013. (ER 661 62-64, ER 695.)

Appellant also conceded in the TAC that the Modification Agreement cured her then-existing default under her original Note. (See ER 660 54 (To cure the default, plaintiff obtained a loan modification on April 7, 2008).) Although Appellant alleges that the purported missing fax page scheme deprived her of notice of the change in her monthly payments in April 2013, the allegation fails to establish injury in fact for two reasons. (See ER 682

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165.) First, the documents referenced in the TAC show that she did in fact receive notice on April 10, 2008, when she received the Modification Agreement from HomEq. (ER 661 63.) The Modification Agreement clearly discloses that [t]he date on which the New Monthly Payment change is next scheduled to occur is hereby changed to 05/01/2013. (ER 695 1(b).) Second, even if Appellant sufficiently alleged nondisclosure of such notice (and she has not), she has not alleged that she suffered any economic harm as a result, as is required under the UCL and FAL. Rather, it is undisputed that Appellant defaulted on her modified mortgage and declared bankruptcy in January 2010more than three years before her interest rate was to become linked to LIBOR under the Modification Agreement.3 Appellant incorrectly suggests that she need not show economic injury to state her UCL and FAL claims despite relying on a case that expressly holds the opposite (see Op. Br. at 39): a UCL plaintiff must demonstrate some form of economic injury. Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 323 (2011). Appellant states that [t]he fact that the actual rate may have gone down or

Appellants attempt to circumvent the standing requirements of the UCL and FAL by citing United States v. Socony-Vacuum Oil Co., 310 US 150 (1940) is unavailing. Socony-Vacuum describes agreements that are per se illegal under the Sherman Act, and is completely unrelated to Appellants lack of statutory standing.

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up is irrelevant; what matters is that the rate was not independently determined. (Op. Br. at 42.) Appellant appears to be arguing that it is irrelevant whether the alleged manipulation of LIBOR harmed or benefited her, suggesting that she need not have suffered any economic loss in order to have UCL or FAL standing. But the applicable law, which unequivocally requires a plaintiff to show economic injury in order to establish standing, directly contradicts that contention. Kwikset, 51 Cal. 4th at 323; see also TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 825 n.1 (9th Cir. 2011) (holding UCL injury-in-fact standing is slightly narrower than Article III standing because plaintiff must prove a pecuniary injury and immediate causation). Because Plaintiff has failed to adequately allege any such economic injury, the District Court properly dismissed Appellants UCL and FAL claims for lack of standing. III. THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANTS FAL CLAIM WAS TIME BARRED. Among other defects, Appellants FAL claim relating to the purported missing fax pages scheme is barred by the statute of limitations. Actions for a violation of the FAL are subject to a three-year statute of limitations. CAL. CIV. PROC. 338(a). Appellant alleges that the act of false advertising occurred on April 10, 2008, when defendant purportedly faxed a defective copy of the loan modification agreement. (ER 661 63.) Because Appellant executed that

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Appellant, however, filed this action on March 1, 2012, more than three years later. On that ground, the District Court properly dismissed this claim as time barred. (ER 14-15.) Further, Appellant has waived her right to contest this ruling by failing to raise it on appeal. See Castro-Martinez v. Holder, 674 F.3d 1073, 108283 (9th Cir. 2011) (declining to review an issue on appeal not raised in appellants opening brief). IV. THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANTS AIDING AND ABETTING CLAIM FAILED FOR LACK OF A VIABLE PRIMARY TORT CLAIM. The District Court properly dismissed Appellants claims against the Barclays Appellees for aiding and abetting other Defendants purported violations of the UCL on the grounds that Appellant failed to state a viable UCL claim against any defendant in the action below. Because aiding and abetting the

commission of an intentional tort is a derivative claim, it requires the existence of a primary tort claim. Casey v. U.S. Bank Natl Assn, 127 Cal. App. 4th 1138, 1144 (2005). The District Court properly determined that Appellant failed to state a claim that (i) Appellee Deutsche Bank National Trust Company engaged in any tortious conduct, and (ii) Appellee HomEq committed a tort by means of the alleged missing fax page scheme. Without allegations sufficient to sustain her primary tort claims, the District Court properly found that Appellant had no basis for relief on her derivative aiding and abetting claim against the Barclays

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Appellees. (ER 16.) In any event, Appellant has waived her right to contest this ruling by failing to raise it on appeal. See Castro-Martinez, 674 F.3d at 1082-83. V. THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANT LACKED STANDING TO ASSERT HER CLAIMS FOR BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING. Because Appellants breach of the covenant of good faith and fair dealing claims rest on the same defective allegations that underlie all of her other claims, the District Court properly dismissed those claims for lack of Article III standing. See Kaing v. Pulte Homes, Inc., No. 09-5057, 2010 WL 625365, at *6 (N.D. Cal. Feb. 18, 2010) (dismissing with prejudice plaintiffs California covenant of good faith and fair dealing claim for failure to establish Article III standing). Appellant attempts to sidestep this determination altogether and now asks the Court to rule on the merits of this claima question not reached by the District Court below. As a threshold matter, this issue is not properly before the Court as it was not argued below. See Conservation Nw. v. Sherman, No.

11-35729, 2013 WL 1760807, at *6 (9th Cir. Apr. 25, 2013) (reaffirming the Courts rule against entertaining arguments on appeal that were not presented or developed before the district court) (quotation omitted). Moreover, in an attempt to argue the merits of her claim (on appeal of a decision concerning solely her standing to bring it), Appellant inappropriately advances a host of confusing new allegations never raised in the TAC. See Recinto -19-

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v. U.S. Dept of Veterans Affairs, 706 F.3d 1171, 1176 n.3 (9th Cir. 2013) (declining to consider allegations advanced for the first time on appeal). Specifically, she appears to assert that Appellee HomEq violated federal regulations promulgated under the Truth In Lending Act (TILA) when it purportedly hid the terms of her mortgage and made inconsistent representations as to what those terms were (either adjustable or fixed). (Op. Br. at 55-56.) Appellants argument, insofar as it can be understood, seems to suggest that this alleged TILA-related injury gives her Article III standing to bring a claim for breach of the covenant of good faith and fair dealing, despite the fact that she is not asserting a TILA claim. (Op. Br. at 56.) Not so. Appellants covenant claim rests exclusively on the same defective allegations concerning LIBOR manipulation and the missing fax pages scheme that fail to support Article III standing for Appellants antitrust and state statutory claims. (ER 688 207-09.) The District Court properly dismissed her claim because she failed to plead, and could not have pled, an injury in fact. Nothing that Appellant (improperly) argues here for the first time alters that conclusion. VI. THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANT FAILED TO PLEAD THE BASIC ELEMENTS OF COMMON LAW FRAUD. Appellants failure to tie her purported injuries to any alleged conduct by the Barclays Appellees also defeats her standing to bring her fraud claim. It

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further prevents Appellant from properly pleading resulting damagean essential element of a fraud action under California law. See Engalla v.

Permanente Med. Grp., Inc., 15 Cal. 4th 951, 974 (1997). Because her loan was never tied to LIBOR, Appellant cannot show any type of damages whatsoever, much less damages resulting from an alleged fraud. CONCLUSION For the reasons set forth above, the District Courts order dismissing Appellants claims should be affirmed. Dated: July 1, 2013 Respectfully submitted, /s/ Adam S. Paris Adam S. Paris SULLIVAN & CROMWELL LLP 1888 Century Park East, Suite 2100 Los Angeles, California 90067 (310) 712-6600 (telephone) (310) 712-8800 (facsimile) David H. Braff Yvonne S. Quinn Jeffrey T. Scott Matthew S. Fitzwater Matthew J. Porpora SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York 10004 Tel: (212) 558-4000 Fax: (212) 558-3588

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BOIES, SCHILLER & FLEXNER LLP Jonathan D. Schiller jschiller@bsfllp.com 575 Lexington Ave., 7th Floor New York, New York 10022 Telephone: 212.446.2300 Facsimile: 212.446.2350 David L. Zifkin dzifkin@bsfllp.com 225 Santa Monica Blvd., 11th Floor Santa Monica, California 90401 Telephone: 310.395.5800 Facsimile: 310.578.7898

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STATEMENT OF RELATED CASES Appellees Barclays Bank PLC and Barclays Capital Real Estate Inc., d/b/a HomEq Servicing, are aware of no case currently pending before this Court that may be deemed a related case under Ninth Circuit Rule 28-2.6. Dated: July 1, 2013 /s/ Adam S. Paris ADAM S. PARIS

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CERTIFICATE OF COMPLIANCE Pursuant to Rule 28.1(e)(2)(B) of the Federal Rules of Appellate Procedure, counsel for Barclays Bank PLC and Barclays Capital Real Estate Inc., d/b/a HomEq Servicing, hereby certifies that the text of the enclosed brief is size 14-point Times New Roman font, and contains approximately 4,544 words including footnotes. Counsels approximation is based on the Word Count

function of the program used to draft the enclosed brief. Dated: July 1, 2013 /s/ Adam S. Paris ADAM S. PARIS

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the Answering Brief of Appellees Barclays Bank PLC and Barclays Capital Real Estate Inc., d/b/a HomEq Servicing, with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate ECF system on July 1, 2013. Counsel for Appellant Helen Galope, who is a registered ECF user, will be served by the appellate ECF system. Dated: July 1, 2013 /s/ Adam S. Paris ADAM S. PARIS