Matthew Gallagher v. US Bancorp

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW F. GALLAGHER; MELISSA No. 13-55844
A. GALLAGHER,
D.C. No. 2:12-cv-06145-MWF-
Plaintiffs-Appellants, PJW
v.
MEMORANDUM*
U.S. BANCORP, DBA U.S. Bank, N.A., As
Trustee Successor in Interest to Bank of
America, National Association, As Trustee
(Successor by Merger to LaSalle Bank
National Association) As Trustee for
Thornburg Mortgage Securities Trust 2006-
4; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
This matter has been stayed since February 23, 2017, pending issuance of
*
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 mandate in Ho v. ReconTrust Co., N.A., No. 10-56884, or further order of the
court. We hereby lift the stay.
Matthew F. Gallagher and Melissa A. Gallagher appeal pro se from the
district court’s order dismissing their 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 dismissal under Federal Rule of Civil Procedure
12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040-41
(9th Cir. 2011). We may affirm on any ground supported by the record. Cigna
Prop. & Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998).
We affirm.
The district court properly dismissed the Gallaghers’ Fair Debt Collection
Practices Act (“FDCPA”) claim because the Gallaghers failed to allege facts
sufficient to show that any defendant is a debt collector within the meaning of the
FDCPA. See 15 U.S.C. § 1692a(6) (definition of “debt collector” under FDCPA);
Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1208 (9th Cir. 2013) (complaint
“must plead factual content that allows the court to draw the reasonable inference”
that defendant is a “debt collector” as defined by the FDCPA (citation and internal
quotation marks omitted)).
The district court properly dismissed the Gallaghers’ Truth in Lending Act
(“TILA”) damages claim because it is barred by the statute of limitations and the
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Gallaghers failed to plead facts demonstrating that equitable tolling should apply.
See 15 U.S.C. § 1640(e) (an action for damages under TILA must be brought
within one year of the alleged violation); Cervantes, 656 F.3d at 1045 (equitable
tolling applies where “despite all due diligence, the party invoking equitable tolling
is unable to obtain vital information bearing on the existence of the claim” (citation
and internal quotation marks omitted)).
The district court properly dismissed the Gallagher’s claim under
California’s Unfair Competition Law (“UCL”) because the Gallaghers failed to
allege facts sufficient to show that they had standing to bring a UCL claim. See
Turner v. Wells Fargo Bank NA, 859 F.3d 1145, 1150-51 (9th Cir. 2017)
(borrowers who were in default lacked standing to bring a UCL claim).
Dismissal of the Gallaghers’ remaining claims was proper because the
Gallaghers failed to allege facts sufficient to state any plausible claim for relief.
See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se
pleadings are liberally construed, a plaintiff must allege facts sufficient to state a
plausible claim); see also 12 U.S.C. § 2605(f)(1)(A) (allowing recovery of “actual
damages” under the Real Estate Settlement Procedures Act); Cal. Civ. Code §§
1788.1(b) (California’s Rosenthal Fair Debt Collection Practices Act (“RFDCPA”)
applies to the collection of consumer debts), 1788.2(c) (defining “debt collector”
under the RFDCPA), 2923.5 (providing that a “mortgagee, trustee, beneficiary, or
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authorized agent” may file a notice of default under § 2924); Sanford v.
MemberWorks, Inc., 625 F.3d 550, 557-58 (9th Cir. 2010) (civil RICO); Durell v.
Sharp Healthcare, 108 Cal. Rptr. 3d 682, 697-99 (Ct. App. 2010) (breach of
contract and breach of the implied covenant of good faith and fair dealing); Teselle
v. McLoughlin, 92 Cal. Rptr. 3d 696, 715 (Cal. Ct. App. 2009) (accounting); Cal.
Med. Ass’n, Inc. v. Aetna U.S. Healthcare of Cal., 114 Cal. Rptr. 2nd 109, 125-26
(Ct. App. 2001) (quasi-contract); Nymark v. Heart Fed. Sav. & Loan Ass’n, 283
Cal. Rptr. 53, 56 (Ct. App. 1991) (negligence).
To the extent that Gallaghers challenge the validity of the purported
securitization of their loan, they lack standing to raise such a challenge. See
Saterbak v. JP Morgan Chase Bank, N.A., 199 Cal. Rptr. 3d 790, 796 (Ct. App.
2016) (holding that an allegedly forged or untimely assignment of a loan into a
securitized trust was merely voidable and, therefore, the borrower lacked standing
to challenge its validity). We reject as without merit the Gallaghers’ contention
that the purported securitization of their loan affected the enforceability of the note
or deed of trust.
The district court did not abuse its discretion by granting defendants’ request
for judicial notice because the documents in questions were matters of public
record. See Fed. R. Evid. 201(b)(2); Lee v. City of Los Angeles, 250 F.3d 668, 689
(9th Cir. 2001) (standard of review).
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We reject as without merit the Gallaghers’ contentions that defendants
should have produced evidence in connection with their motions to dismiss and
that the Gallaghers were entitled to discovery.
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).
The stay of non-judicial foreclosure proceedings (Docket Entry No. 20) is
hereby lifted.
AFFIRMED.
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