Alicia Johnson v. Ocwen Loan Servicing, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2018
• Docket: 18-55279
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALICIA JOHNSON, No. 18-55279

Plaintiff-Appellant, D.C. No. 5:17-cv-01373-JGB-SP

v. MEMORANDUM* OCWEN LOAN SERVICING, LLC; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

Alicia Johnson appeals pro se from the district court’s order dismissing her

action alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) and

state law. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s dismissal under Federal Rule of Civil Procedure

* 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). 12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th

Cir. 2011). We affirm.

The district court properly dismissed Johnson’s FDCPA claims because

Johnson failed to allege facts sufficient to state plausible claims. See 15 U.S.C.

§ 1692f(6) (prohibiting foreclosure proceedings without a present right to

possession of the property); 15 U.S.C. § 1692j (prohibiting creation of false belief

in a consumer that a person other than the creditor is seeking to collect a debt); 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 Johnson’s claim for violation of Cal.

Civ. Code § 2934a because Johnson failed to allege facts sufficient to show that the

substitution of trustee was improper. See Cal. Civ. Code § 2934a(a)(1)(A) (a

substitution of trustee may be executed and acknowledged by the beneficiary under

the deed of trust); Cal. Civ. Code § 2934a(d) (“Once recorded, the substitution [of

trustee] shall constitute conclusive evidence of the authority of the substituted

trustee or his or her agents to act pursuant to this section.”); Aceves v. U.S. Bank,

N.A., 120 Cal. Rptr. 3d 518, 518-19 (Ct. App. 2011) (noting that § 2934a does not

preclude attorney-in-fact from signing substitution on behalf of beneficiary).

The district court properly dismissed Johnson’s cancellation of instruments

2 18-55279 claim because Johnson failed to allege facts sufficient to show that the title

documents were either void or voidable or that there was a reasonable

apprehension of serious injury if the instruments were not cancelled. 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 Johnson’s unfair competition claim

because Johnson failed to allege facts sufficient to show that defendants engaged in

business acts that were independently unlawful, unfair or fraudulent. See Cal. Bus.

& Prof. Code § 17200 (prohibiting “any unlawful, unfair or fraudulent business

acts”).

The district court properly considered materials Johnson attached to the

complaint in ruling on defendants’ motion to dismiss. See Hal Roach Studios, Inc.

v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989) (material

properly submitted as part of the complaint may be considered in ruling on a

motion to dismiss).

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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