Jeremy Wolfson v. Bank of America, N.A. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEREMY WOLFSON, No. 20-35792
Plaintiff-Appellant, D.C. No. 3:17-cv-06064-BHS
v.
MEMORANDUM*
BANK OF AMERICA, N.A., its successors
in interest and/or Assigns; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Jeremy Wolfson appeals pro se from the district court’s judgment in his
action alleging Fair Debt Collection Practices Act (“FDCPA”) and state law
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. JL
Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1104 (9th Cir. 2016)
*
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).
(summary judgment); Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,
1040 (9th Cir. 2011) (dismissal under Fed. R. Civ. P. 12(b)(6)). We affirm.
The district court properly granted summary judgment on Wolfson’s claims
for defamation and replevin against defendants Bank of America, N.A., Merscorp
Holdings, Inc., and Mortgage Electronic Registration Systems, Inc., as well as his
claims against defendant MTC Financial d/b/a Trustee Corps, because Wolfson
failed to raise a genuine dispute as to any material fact regarding these claims. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (establishing that the party with
the burden of proof at trial must “make a showing sufficient to establish the
existence of an element essential to that party’s case” to survive summary
judgment).
The district court properly dismissed Wolfson’s FDCPA claims because
Wolfson failed to allege facts sufficient to show that defendant Bank of America,
N.A., is considered a debt collector under the FDCPA. See 15 U.S.C.
§ 1692a(6)(F)(iii) (excluding from the definition of debt collector a party seeking
to collect any debt owed where the debt concerned was not in default at the time it
was acquired); De Dios v. Int’l Realty & Invs., 641 F.3d 1071, 1074-75 & n.3 (9th
Cir. 2011) (explaining that under the FDCPA a “debt collector does not include
those mortgage service companies and others who service outstanding debts for
others, so long as the debts were not in default when taken for servicing” (citation
2 20-35792
and internal quotation marks omitted)).
The district court properly dismissed Wolfson’s quiet title claims because
Wolfson failed to allege facts sufficient to state a claim. See Kobza v. Tripp, 18
P.3d 621, 623-24 (Wash. App. 2001) (plaintiff in quiet title action must be “in
peaceable possession” of property).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 20-35792