Farid Ghalehtak v. Fay Servicing, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2019
• Docket: 18-15722
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FARID GHALEHTAK; SHIRIN No. 18-15722 TABATABAI, D.C. No. 3:17-cv-05976-EMC Plaintiffs-Appellants,

v. MEMORANDUM*

FAY SERVICING, LLC; MTC FINANCIAL, INC., DBA Trustee Corps,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Submitted March 12, 2019**

Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.

Farid Ghalehtak and Shirin Tabatabai appeal pro se from the district court’s

judgment dismissing their action alleging federal and state law claims arising from

foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We

* 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). 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. Franklin v.

Terr, 201 F.3d 1098, 1100 n.2 (9th Cir. 2000). We affirm.

Dismissal of plaintiffs’ Fair Debt Collection Practices Act (“FDCPA”) claim

under 15 U.S.C. § 1692f(6) was proper because plaintiffs failed to allege facts

sufficient to show that the entity on behalf of which defendants sought to foreclose

lacked “the present right to possession of the property claimed as collateral through

an enforceable security interest.” See 15 U.S.C. § 1692f(6)(A); 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 did not abuse its discretion in retaining jurisdiction over

plaintiffs’ state law claims after its dismissal of their FDCPA claims. See Satey v.

JPMorgan Chase & Co., 521 F.3d 1087, 1091 (9th Cir. 2008) (explaining factors

governing determination of whether to retain jurisdiction over pendent state-law

claims).

The district court properly dismissed plaintiff’s state law claims because

plaintiffs failed to allege facts sufficient to support the theory underlying all of

their state law claims that FNBN I, LLC was not the true beneficiary under the

2 18-15722 loan. See Iqbal, 556 U.S. at 678.

The district court did not abuse its discretion by taking judicial notice of

certain public records and district court and bankruptcy court documents. See Lee

v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (setting forth standard

of review, and describing documents that a district court may take judicial notice

of when ruling on a Rule 12(b)(6) motion).

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).

Fay Servicing, LLC’s request for judicial notice (Docket Entry No. 15) is

granted.

AFFIRMED.

3 18-15722