Larry Brown v. Bank of America
660 F. App'x 506
| 9th Cir. | 2016Background
- Larry Brown sued multiple mortgagees on behalf of over 1,000 supposed mortgagors, claiming to be an assignee of their claims via Life Savers Concepts Association, Inc.
- The district court dismissed the case for lack of standing and reviewed an unsolicited letter (the “Victa Letter”) in camera, later finding it unprivileged and not work product.
- Brown’s Second Amended Complaint alleged assignment language but produced no affidavits, exhibits, or other evidence proving valid assignments from the mortgagors to Life Savers or to Brown.
- Appellees notified the court of possible fraud, citing an unsolicited email and FTC consumer alerts about similar mass-action solicitation schemes, and filed a Motion to Show Cause relying on the Victa Letter.
- The district court concluded Brown failed to carry the burden that the Victa Letter was privileged or protected by work-product doctrine and that the crime–fraud exception applied.
- The Ninth Circuit affirmed: Brown lacked standing (failure to prove assignments) and failed to show privilege or work-product protection for the Victa Letter; leave to amend was denied as untimely and futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue as assignee of mortgagors' claims | Brown claimed Life Savers assigned claims to him and he stands in assignors’ shoes | No proof of express assignments or evidence demonstrating assignors intended assignment | Dismissed for lack of standing; Brown failed to prove assignments |
| Authority to litigate claims affecting real property interests | Brown claimed assignment conferred interest to pursue property-related claims | Defendants argued no evidence Brown acquired interests in mortgagors’ property | Held Brown did not establish an interest sufficient to litigate real-property claims |
| Whether district court abused discretion by reviewing Victa Letter in camera without threshold showing | Brown argued privilege barred review absent threshold showing | Defendants argued minimal showing justified in-camera review and relief | Any abuse, if any, was harmless; minimal showing met; outcome unchanged |
| Privilege and work-product protection for Victa Letter (and applicability of crime–fraud exception) | Brown said letter was confidential communication involving Life Savers’ exec who attended meetings and thus privileged/common-interest protected | Defendants argued letter suggested malfeasance; communications were information-gathering, not confidential legal advice; crime–fraud exception applies; not prepared in anticipation of litigation | Court held Brown failed to meet burden of privilege or work-product; crime–fraud exception or lack of protection permitted disclosure |
Key Cases Cited
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (standing requires injury in fact)
- Spinedex Physical Therapy USA Inc. v. United Healthcare of Ariz., Inc., 770 F.3d 1282 (9th Cir. 2014) (assignee stands in assignor’s shoes for standing)
- Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269 (2008) (assignee may establish standing via assignment of claims)
- Britton v. Co-op Banking Grp., 4 F.3d 742 (9th Cir. 1993) (proof required to show assignor intended assignment)
- St. Clair v. City of Chico, 880 F.2d 199 (9th Cir. 1989) (plaintiff must present evidence to establish subject-matter jurisdiction on factual challenge)
- In re Grand Jury Investigation (The Corp.), 974 F.2d 1068 (9th Cir. 1992) (standard for in-camera review and minimal showing for privilege exceptions)
- United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009) (burden on party asserting privilege)
- United States v. Richey, 632 F.3d 559 (9th Cir. 2011) (privilege protects confidential communications made for purpose of legal advice)
- Pac. Pictures Corp. v. U.S. Dist. Ct. for the C.D. of Cal. (In re Pac. Pictures Corp.), 679 F.3d 1121 (9th Cir. 2012) (common-interest doctrine requires joint strategy/agreement, not mere shared outcome)