Frederick Brewster v. Wachovia Mortgage , 699 F. App'x 705 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDERICK T. BREWSTER, No. 12-35490
Plaintiff-Appellant, D.C. No. 3:11-cv-05597-RBL
v.
MEMORANDUM*
WACHOVIA MORTGAGE, FSB; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.
Frederick T. Brewster appeals pro se from the district court’s summary
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. Edwards v.
Wells Fargo & Co., 606 F.3d 555, 557 (9th Cir. 2010). We affirm.
*
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).
The district court properly granted summary judgment on Brewster’s claim
under the Fair Debt Collection Practices Act (“FDCPA”) because Brewster failed
to raise a genuine dispute of material fact as to whether Wells Fargo 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.” (citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Brewster’s Real
Estate Settlement Procedures Act claim because Brewster failed to raise a genuine
dispute of material fact as to whether Wells Fargo provided an inadequate written
response to Brewster’s inquiry as to the current owner of his mortgage loan. See
12 U.S.C. § 2605(e) (identifying service-related inquires that require a loan
servicer to respond).
The district court properly granted summary judgment on Brewster’s quiet
title claim because Brewster failed to raise a genuine dispute of material fact as to
whether he had defaulted on his mortgage. See Walker v. Quality Loan Srv. Corp.,
308 P.3d 716, 728 (Wash. Ct. App. 2013) (“A plaintiff in an action to quiet title
must prevail, if he prevails at all, on the strength of his own title” (citation and
quotation marks omitted)).
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The district court did not abuse its discretion by denying Brewster’s motion
to file a surreply because Brewster did not identify in his motion any basis for
granting leave to file a surreply. See Preminger v. Peake, 552 F.3d 757, 769 n.11
(9th Cir. 2008) (court reviews for abuse of discretion a district court’s decisions
concerning its management of litigation). To the extent Brewster’s motion to file a
surreply is construed as a Fed. R. Civ. P. 56(d) motion for additional discovery,
such motion fails because Brewster failed to demonstrate that the discovery
requested would have precluded summary judgment. See Getz v. Boeing Co., 654
F.3d 852, 867-68 (9th Cir. 2011) (setting forth standard of review and explaining
that a plaintiff must show that the discovery sought would have precluded
summary judgment).
The district court did not abuse its discretion in denying Brewster’s motion
to alter or amend the judgment because Brewster failed to demonstrate any
grounds for such relief. See Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th
Cir. 2003) (setting forth standard of review and outlining requirements for granting
relief under Fed. R. Civ. P. 59(e)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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