Donna Brown v. Wells Fargo Bank, N.A. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA BROWN, an individual; No. 19-55064
TIMOTHY BROWN, an individual,
D.C. No. 2:16-cv-00642-DMG-AGR
Plaintiffs-Appellants,
v. MEMORANDUM*
WELLS FARGO BANK, N.A., FKA
Wachovia Mortgage, FSB, FKA World
Savings Bank, FSB, a corporation;
Successor Wells Fargo Bank Southwest,
N.A.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted June 3, 2020**
Pasadena, California
Before: W. FLETCHER and LEE, Circuit Judges, and AMON,*** District Judge.
Donna and Timothy Brown appeal the district court’s denial of leave to amend
*
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 Honorable Carol B. Amon, United States District Judge for the
Eastern District of New York, sitting by designation.
their complaint. We review the denial of a motion to amend for abuse of discretion.
See Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002). We affirm.
1. The Browns argue for the first time on appeal that Wells Fargo Bank,
N.A. (“Wells Fargo”) acted as a “debt collector” under the Fair Debt Collection
Practices Act (“FDCPA”) because it serviced the Browns’ mortgage loan on behalf
of a securitized trust. Because this argument was not raised below, it has been
waived on appeal. See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988,
992 (9th Cir. 2010) (“[A]n issue will generally be deemed waived on appeal if the
argument was not raised sufficiently for the trial court to rule on it.”) (citations and
internal quotation marks omitted).1
2. The Browns also now seek to add a state Rosenthal Act claim. But if a
“party does not ask the district court for leave to amend, ‘the request on appeal to
remand with instructions to permit amendment comes too late.’” Alaska v. United
States, 201 F.3d 1154, 1163–64 (9th Cir. 2000) (quoting Jackson v. Am. Bar
Ass’n, 538 F.2d 829, 833 (9th Cir. 1976)). Because the Browns did not seek leave
1
In any event, the FDCPA exempts activity that “concerns a debt which was not in
default at the time it was obtained . . . .” 15 U.S.C. § 1692a(6)(F). It is undisputed
that Wells Fargo obtained servicing rights to the Browns’ mortgage loan prior to any
default. As a result, the Browns likely cannot pursue a FDCPA claim based on Wells
Fargo’s reporting on the mortgage loan. See De Dios v. Int’l Realty & Invs., 641
F.3d 1071, 1074–76 (9th Cir. 2011) (15 U.S.C. § 1692a(6)(F) precluded FDCPA
claim against property management company retained before default to collect
monthly payments).
2
of the district court to assert a Rosenthal Act claim, they cannot do so for the first
time on appeal.
AFFIRMED.
3