Karri Wheeler v. Wells Fargo Home Mortgage

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARRI LEN WHEELER, an individual, No. 18-35907
Plaintiff-Appellant, D.C. No. 3:18-cv-05060-BHS
v.
MEMORANDUM*
WELLS FARGO HOME MORTGAGE, a
division of Wells Fargo N.A.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Karri Len Wheeler appeals pro se from the district court’s judgment
dismissing her action alleging claims under the Truth In Lending Act (“TILA”),
Real Estate Settlement Procedures Act (“RESPA”), Fair Debt Collection Practices
Act (“FDCPA”), and state law arising out of foreclosure proceedings. We have
*
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).
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 (9th Cir. 2011). We may
affirm on any ground supported by the record. Gordon v. Virtumundo, Inc., 575
F.3d 1040, 1047 (9th Cir. 2009). We affirm.
The district court properly dismissed Wheeler’s TILA and RESPA claims
because these statutes do not apply to loans taken primarily for business purposes.
See 12 U.S.C. § 2606(a)(1) (RESPA does not “apply to credit transactions
involving extensions of credit . . . primarily for business, commercial, or
agricultural purposes . . . .”); 15 U.S.C. § 1603(1) (TILA does not “apply to . . .
[c]redit transactions involving extension of credit primarily for business,
commercial, or agricultural purposes . . . . ”); Johnson v. Wells Fargo Home
Mortg., Inc., 635 F.3d 401, 417 (9th Cir. 2011) (explaining that loans taken to
acquire “non-owner-occupied rental properties” were loans for business purposes
under Regulation Z to which RESPA did not apply).
Dismissal of Wheeler’s FDCPA claim was proper because Wheeler failed to
allege facts sufficient to show how defendant Wells Fargo violated the FDCPA.
See 15 U.S.C. § 1692e (prohibiting “any false, deceptive, or misleading
representation or means in connection with the collection of any debt”); § 1692f(6)
(prohibiting the “taking or threatening to take any nonjudicial action to effect
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dispossession or disablement of property if there is no present right to possession
of the property”); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid
dismissal, “a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face” (citation and internal quotation
marks omitted)).
The district court properly dismissed Wheeler’s claim under the Washington
Consumer Protection Act (“CPA”) because Wheeler failed to allege facts sufficient
to state any element of a CPA claim. See Hangman Ridge Training Stables, Inc. v.
Safeco Title Ins. Co., 719 P.2d 531, 533 (Wash. 1986) (elements of the CPA cause
of action).
The district court did not abuse its discretion in denying Wheeler further
leave to amend because amendment would have been futile. See Cervantes, 656
F.3d at 1041 (setting forth standard of review and explaining that a district court
may deny leave to amend where amendment would be futile).
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.
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