NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 27 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LOREEN AVAKIAN; JEFFREY GARZA,                  No.    19-55659

                Plaintiffs-Appellants,          D.C. No.
                                                2:18-cv-05766-MWF-AGR
 v.

WELLS FARGO BANK, N.A., a National              MEMORANDUM*
Association; DOES, 1 through 10, inclusive,

                Defendants-Appellees.

                  Appeal from the United States District Court
                      for the Central District of California
                 Michael W. Fitzgerald, District Judge, Presiding

                     Argued and Submitted October 13, 2020
                              Pasadena, California

Before: GOULD and OWENS, Circuit Judges, and KORMAN,** District Judge.

      Plaintiff-Appellants Loreen Avakian and Jeffrey Garza (collectively

“Borrowers”) appeal the dismissal of their second amended complaint (“SAC”)




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
without leave to amend. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      Borrowers stopped making their scheduled mortgage payments in April

2016, with a resulting monetary balance due on the mortgage loan. A notice of

default was recorded in October 2016, reflecting $34,642.84 in arrears, followed

by a notice of sale in January 2017. Borrowers submitted a first loan modification

application to their lender, Defendant-Appellee Wells Fargo Bank, N.A.

(“Lender”), which was denied on April 11, 2017. Borrowers submitted a second

application to modify their loan agreement in June 2017. They sent the last

requested documents to Lender on June 28. A foreclosure sale was conducted at

6:30 AM on July 3, although Lender told Borrowers later that day that their second

application was complete.

      Borrowers brought eight causes of action under California law against

Lender, alleging misconduct in the foreclosure proceedings and the loan

modification process. The district court successively dismissed their complaint on

September 25, 2018, their first amended complaint on February 26, 2019, and their

SAC on May 10, 2019, all for failure to state a claim. Borrowers appeal the

dismissal of their SAC without leave to amend. We address the various claims of

Borrowers in turn.

      First, Borrowers did not state a claim for wrongful foreclosure. Even if


                                        2
Lender committed the violations Borrowers allege, these notice violations were

technical. Under California law “mere technical violations of the foreclosure

process will not give rise to a tort claim.” Majd v. Bank of Am., N.A., 243 Cal.

App. 4th 1293, 1307 (Ct. App. 2015) (citation omitted), as modified (Jan. 14,

2016). This rule precludes a claim of wrongful foreclosure, which is in tort.

      Second, Borrowers did not state a claim for dual tracking under the

California Homeowner Bill of Rights. Cal. Civ. Code § 2923.6(c). Lender denied

the first application months before the foreclosure sale. Lender did not need to

consider a second loan modification application after denying the first because

Borrowers did not adequately plead that they submitted to Lender documentation

of a material change in their financial situation since their first application. See

Cal. Civ. Code § 2923.6(g).

      Third, Borrowers’ claims for unfair business practices, intentional

misrepresentation, fraud, and negligent misrepresentation are all fraud-based

claims, and must meet the heightened pleading requirements of Rule 9(b) of the

Federal Rules of Civil Procedure. See Kearns v. Ford Motor Co., 

,

1125 (9th Cir. 2009). Borrowers did not show that Lender’s challenged statements

were false when they were made and did not show how Borrowers could have been

misled by Lender’s statement that their application was complete when the

statement was made after the foreclosure sale had taken place. See In re GlenFed,


                                           3
Inc. Sec. Litig., 

, 1548 (9th Cir. 1994) (en banc) (requiring that the

complaint state “what is false or misleading about a statement, and why it is

false”), superseded by statute on other grounds, Private Securities Litigation

Reform Act of 1995, 15 U.S.C. § 78u–4(b)(1), as recognized in Ronconi v. Larkin,

, 429 n.6 (9th Cir. 2001). Borrowers did not state a fraud-based

claim.

         Fourth, Borrowers did not state a claim for negligence because they did not

show that Lender owed them a duty in tort. See Nymark v. Heart Fed. Sav. & Loan

Ass’n., 

, 1096 (Ct. App. 1991). Here, Alvarez v. BAC Home

Loans Servicing, LP does not establish a duty because Borrowers did not plead that

Lender had agreed to consider their second loan modification application before

the foreclosure sale took place. 

, 948 (Ct. App. 2014).

         Fifth, Borrowers’ unjust enrichment claim relied on their other claims to

allege that Lender was “unjustly conferred a benefit ‘through mistake, fraud,

coercion, or request.’” See Astiana v. Hain Celestial Grp., Inc., 

, 762

(9th Cir. 2015) (citation omitted). Because Borrowers’ other causes of action did

not state a claim, this claim also fails.

         Finally, the district court did not abuse its discretion by denying leave to

amend. See Cervantes v. Countrywide Home Loans, Inc., 

, 1041

(9th Cir. 2011) (citation omitted). “The district court’s discretion to deny leave to


                                             4
amend is particularly broad where plaintiff has previously amended the

complaint.” Sisseton-Wahpeton Sioux Tribe of Lake Traverse Indian Reservation,

N.D. & S.D. v. United States, 

, 355 (9th Cir. 1996) (citation omitted).

Here, because the district court denied leave to amend after permitting amendment

twice and warning that it would not do so a third time, we cannot say that “the

district court committed clear error of judgment.” See