Jose Pineda v. Wells Fargo Bank, N.A. , 695 F. App'x 316 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS PINEDA, No. 11-55006
Plaintiff-Appellant, D.C. No. 2:10-cv-02267-DMG-
PJW
v.
WELLS FARGO BANK, NA; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Jose Luis Pineda appeals pro se from the district court’s judgment in his
action alleging federal and state law foreclosure-related claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). Colony Cove Props., LLC v. City of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Carson, 640 F.3d 948, 955 (9th Cir. 2011). We affirm.
The district court properly dismissed Pineda’s Real Estate Settlement
Procedures Act claim because “letters challenging only a loan’s validity or its
terms are not qualified written requests that give rise to a duty to respond under
§ 2605(e).” Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 666-67 (9th
Cir. 2012); see also 12 U.S.C. § 2605(e) (identifying service-related inquires that
require a loan servicer to respond).
The district court properly dismissed Pineda’s Fair Debt Collection Practices
Act claim because Pineda failed to allege facts sufficient to show that Wells Fargo
Bank is a “debt collector.” See 15 U.S.C. § 1692a(6) (defining “debt collector”
under FDCPA as one who “regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another”); Rowe v.
Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1031 (9th Cir. 2009) (“[A] ‘creditor’ is
not a ‘debt collector’ under the FDCPA.”).
The district court properly dismissed Pineda’s equitable causes of action
seeking to set aside the trustee’s sale, cancel the trustee’s deed, and quiet title
because Pineda failed to allege facts sufficient to show his ability to tender
payment of the indebtedness or a valid excuse to the tender requirement. See Lona
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v. Citibank, N.A., 134 Cal. Rptr. 3d 622, 640-42 (Ct. App. 2011) (explaining the
tender requirement and excuses to tender); Miller v. Provost, 33 Cal. Rptr. 2d 288,
289-90 (Ct. App. 1994) (quiet title); Arnolds Mgmt. Corp. v. Eischen, 205 Cal.
Rptr. 15, 17-18 (Ct. App. 1984) (equitable set-aside); Karlsen v. Am. Sav. & Loan
Ass’n, 92 Cal. Rptr. 851, 854 (Ct. App. 1971) (action to cancel a voidable sale
under a deed of trust).
The district court did not abuse its discretion by taking judicial notice of
facts concerning defendants’ corporate name changes and mergers located on the
Federal Deposit Insurance Corporation website. See Fed. R. Evid. 201(b)
(allowing a court to take judicial notice of a fact “not subject to reasonable dispute
in that it is . . . capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned”); Lee v. City of Los Angeles, 250
F.3d 668, 688 (9th Cir. 2001) (setting forth standard review, and explaining the
circumstances in which the district court may take judicial notice of matters of
public record in ruling on a motion to dismiss for failure to state a claim); see also
Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010) (taking
judicial notice of official information posted on a governmental website, the
accuracy of which was not factually challenged).
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The district court did not abuse its discretion by dismissing Pineda’s second
amended complaint without leave to amend because further amendment would be
futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th
Cir. 2011) (setting forth standard of review and explaining that dismissal without
leave to amend is proper when amendment would be futile); Chodos v. West
Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has
already granted a plaintiff leave to amend, its discretion in deciding subsequent
motions to amend is particularly broad.” (citation and internal quotation marks
omitted)).
We reject as unsupported by the record Pineda’s contentions that the district
judge failed to rule on his objections and that the district court was not impartial.
AFFIRMED.
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