Mitchell Miller v. Bank of America, N.A. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MITCHELL MILLER, No. 17-56720
Plaintiff-Appellant, D.C. No. 2:16-cv-07528-AB-GJS
v.
MEMORANDUM*
BANK OF AMERICA, N.A., as successor
in interest to America’s Wholesale Lender
its successor and or assigns; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Submitted April 11, 2018**
Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.
Mitchell Miller appeals pro se from the district court’s order dismissing his
action alleging federal and state law foreclosure-related claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
*
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).
dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627
F.3d 338, 341 (9th Cir. 2010). We affirm.
The district court properly dismissed Miller’s Truth in Lending Act
(“TILA”), fraud, and Unfair Competition Law claims as time-barred. See 15
U.S.C. § 1635(f) (three-year period to exercise right of rescission under TILA);
Cal. Civ. Proc. Code § 338(d) (three-year statute of limitations for fraud claim
under California law); Cal. Bus. & Prof. Code § 17208 (four-year statute of
limitations for unfair business practices claim under California law). Because
these claims are time-barred, we do not consider Miller’s arguments concerning
the merits of these claims.
The district court properly dismissed Miller’s claim under 26 U.S.C.
§ 860G(d)(1) for an alleged violation of the pooling and servicing agreement
because Miller failed to allege facts sufficient to show he had standing to bring the
claim. See In re Turner, 859 F.3d 1145, 1149 (9th Cir. 2017) (borrowers are not
third-party beneficiaries of pooling and service agreements); Saterbak v.
JPMorgan Chase Bank, N.A., 199 Cal. Rptr. 3d 790, 795-96 (Ct. App. 2016)
(borrower lacks standing to bring a preforeclosure action for wrongful foreclosure
based on an alleged defect in the assignment).
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The district court properly dismissed Miller’s cancellation of instruments
claim because Miller failed to allege facts sufficient to show that the loan
documents were void or voidable. See Thompson v. Ioane, 218 Cal. Rptr. 3d 501,
512 (Ct. App. 2017) (setting forth elements of cancellation of instruments claim
under California law).
The district court properly dismissed Miller’s Fair Debt Collection Practices
Act claim because Miller failed to allege facts sufficient to state a plausible
claim. See 15 U.S.C. § 1692 et seq.; see also Hebbe, 627 F.3d at 341 (although pro
se pleadings are to be liberally construed, a plaintiff must present factual
allegations sufficient to state a plausible claim for relief).
Because we affirm the dismissal of Miller’s substantive claims, the district
court properly dismissed Miller’s accounting claim under California law. See
Janis v. Cal. State Lottery Comm’n, 80 Cal. Rptr. 2d 549, 554 (Ct. App. 1998)
(right to accounting is derivative in that it must be based on other claims).
The district court did not abuse its discretion by denying Miller’s motion to
reconsider because Miller failed to establish any basis for reconsideration. See
Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th
Cir. 1993) (setting forth standard of review and grounds for reconsideration).
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Contrary to Miller’s contentions, the district court did not grant a request by
defendants for judicial notice.
We do not consider arguments and allegations raised for the first time on
appeal, or 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.
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