Hock Huat Yap v. Deutsche Bank National Trust ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 2 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOCK HUAT YAP, No. 19-15210
Plaintiff-Appellant, D.C. No. 4:17-cv-00229-RM
v.
MEMORANDUM*
DEUTSCHE BANK NATIONAL TRUST
COMPANY, trustee of J.P. Morgan
Acquisition Trust 2001-HE1, Asset Backed
Pass - Through Certificates, Series 2007-
HE1; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Rosemary Márquez, District Judge, Presiding
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
Hock Huat Yap appeals pro se from the district court’s summary judgment
and dismissal orders in his action alleging federal and state law claims arising from
*
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. Accordingly, we deny appellant’s request for oral
argument. See Fed. R. App. P. 34(a)(2).
foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir.
2011) (summary judgment); Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)
(dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6)). We affirm.
The district court properly granted summary judgment on Yap’s claim
alleging a violation of the Real Estate Settlement Procedures Act (“RESPA”) under
12 U.S.C. § 2605(k)(1)(D) because Yap failed to raise a genuine dispute of
material fact as to whether he suffered actual damages from the defendants’
allegedly inadequate responses to his request for information under § 2605. See 12
U.S.C. § 2605(k)(1)(D) (requiring servicers of federally related mortgages to
respond within ten business days to a request from a borrower to provide contact
information for the owner or assignee of the loan); § 2605(f)(1)(A) (limiting
recovery to “actual damages” for noncompliance with the requirements of § 2605).
The district court properly dismissed Yap’s claims under RESPA regulations
and the Truth In Lending Act, and Yap’s claim alleging a break in the chain of
title, because Yap failed to allege facts sufficient to state a plausible claim for
relief. See 15 U.S.C. § 1641(f)(2) (providing that upon written request by the
borrower, the servicer must provide the borrower “with the name, address, and
telephone number of the owner of the obligation or the master servicer”); 12
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C.F.R. § 1024.35 (discussing servicing error resolution procedures under RESPA);
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face” (citation omitted)).
The district court did not abuse its discretion in denying Yap leave to amend
to allege a claim under the Arizona Revised Statutes § 33-420 because amendment
would have been futile. See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522,
532 (9th Cir. 2008) (setting forth standard of review and explaining that the district
court may deny leave to amend if amendment would be futile); see also Ariz. Rev.
Stat. § 33-420(A) (prohibiting false recordation of an “interest in, or a lien or
encumbrance against, real property”); Sitton v. Deutsche Bank Nat. Tr. Co., 311
P.3d 237, 241 (Ariz. Ct. App. 2013) (explaining that an assignment of the deed of
trust is covered by Ariz. Rev. Stat. § 33-420(A), and claims under Ariz. Rev. Stat.
§ 33-420(A) are governed by the general four-year statute of limitations).
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).
All requests set forth in the opening brief are denied.
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Yap’s motion to file a substitute or corrected reply brief (Docket Entry No.
42) is denied.
AFFIRMED.
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