Lamesha Robertson v. Citibank, N.A.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAMESHA ARLENA ROBERTSON, No. 13-15449
Plaintiff-Appellant, D.C. No. 3:12-cv-02996-JSW
v.
MEMORANDUM*
CITIBANK, NA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Lamesha Arlena Robertson appeals pro se from the district court’s judgment
dismissing her action alleging federal and state law claims arising from foreclosure
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
district court’s dismissal for failure to state a claim under Federal Rule of Civil
*
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).
Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We
affirm.
The district court properly dismissed Robertson’s quiet title and wrongful
foreclosure claims because the claims rely on legal bases rejected by California
courts and Robertson failed to allege facts sufficient to “state [any] claim to relief
that is plausible on its face.” Id. at 341-42 (citation omitted); see, e.g., Saterbak v.
JP Morgan Chase Bank, N.A., 199 Cal. Rptr. 3d 790, 795-96 (Ct. App. 2016)
(plaintiff bears burden of pleading that a defect in assignment renders the
assignment void, rather than voidable); Siliga v. Mortg. Elect. Registration Sys.,
Inc., 161 Cal. Rptr. 3d 500, 506 (Ct. App. 2013) (“California courts have held that
a trustor who agreed under the terms of the deed of trust that MERS, as the
lender’s nominee, has the authority to exercise all of the rights and interests of the
lender . . . is precluded from maintaining a cause of action based on the allegation
that MERS has no authority to exercise those rights.”), disapproved of in part on
other grounds by Yvanova v. New Century Mortg. Corp., 365 P.3d 845 (Cal. 2016);
Debrunner v. Deutsche Bank Nat’l Trust Co., 138 Cal. Rptr. 3d 830, 835 (Ct. App.
2012) (party need not possess promissory note to foreclose).
The district court properly dismissed Robertson’s Fair Debt Collection
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Practices Act (“FDCPA”) claims because Robertson failed to allege facts sufficient
to show defendants engaged in debt collection activity. See 15 U.S.C. § 1692a(5),
(6); Ho v. ReconTrust Co., 858 F.3d 568, 572 (9th Cir. 2017) (“[A]ctions taken to
facilitate a non-judicial foreclosure . . . are not attempts to collect a ‘debt’ as that
term is defined by the FDCPA.”). Robertson also failed to allege facts sufficient to
show defendants took or threatened to “take any nonjudicial action to effect
dispossession . . . of property” without a “present right to possession of the
property claimed as collateral through an enforceable security interest.” See 15
U.S.C. § 1692f(6)(A).
The district court did not abuse its discretion in not granting Robertson leave
to file a second amended complaint because amendment would be futile. See
Chappel v. Lab. Corp., 232 F.3d 719, 725 (9th Cir. 2000) (“A district court acts
within its discretion to deny leave to amend when amendment would be
futile . . . .”); Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002)
(district court’s discretion “particularly broad” when it has already granted a
plaintiff leave to amend).
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
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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Robertson’s request for oral argument, set forth in her opening brief, and
request for judicial notice (Docket Entry No. 24), are denied.
AFFIRMED.
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