Irma Grant v. Seterus, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2019
• Docket: 17-56907
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 29 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

IRMA J. GRANT, No. 17-56907

Plaintiff-Appellant, D.C. No. 2:16-cv-06692-SJO-AJW

v. MEMORANDUM* SETERUS, INC.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, LEAVY and FRIEDLAND, Circuit Judges.

Irma J. Grant appeals pro se from the district court’s judgment in her action

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

law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

dismissal under Federal Rule of Civil Procedure 12(b)(6). Kwan v. SanMedica

* 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). Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017). We affirm.

The district court properly dismissed Grant’s FDCPA claim against

defendant Federal National Mortgage Association (“Fannie Mae”) because Grant

failed to allege facts sufficient to show that Fannie Mae was a debt collector under

the FDCPA. See 15 U.S.C. § 1692a(6)(F)(ii) (excluding from the definition of

debt collector a creditor collecting debts on its behalf); Afewerki v. Anaya Law

Grp., 868 F.3d 771, 779, n.1 (9th Cir. 2017) (“Under the FDCPA, a creditor

collecting debts on its own behalf is not a ‘debt collector.’” (citation omitted));

Schlegel v. Wells Fargo Bank, N.A., 720 F.3d 1204, 1208 (9th Cir. 2013) (plaintiff

“must plead factual content that allows the court to draw the reasonable inference

that [the defendant] is a debt collector” (citation and internal quotation marks

omitted)).

The district court properly dismissed Grant’s FDCPA claim brought under

15 U.S.C. § 1692f(6) against defendant Seterus, Inc. because Grant failed to allege

facts sufficient to show that Seterus’s conduct was unfair or unconscionable. See

15 U.S.C. § 1692f(6) (prohibiting unfair or unconscionable conduct in enforcing a

security interest); Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 971 (9th Cir.

2017) (discussing protections for borrowers set forth in § 1692f(6)); see also

2 17-56907 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 Grant’s cancellation of instrument

claim because Grant failed to allege facts sufficient to state a plausible claim. See

Iqbal, 556 U.S. at 678; see also Cal. Civ. Code § 3412 (grounds for cancellation of

a written instrument).

The district court properly dismissed Grant’s claim against Seterus under

California’s Unfair Competition Law (“UCL”) because it was derivative of her

§ 1692f(6) claim. See Prakashpalan v. Engstrom, Lipscomb & Lack, 167 Cal.

Rptr. 3d 832, 856 (Ct. App. 2014) (“To state a cause of action based on an

unlawful business act or practice under the UCL, a plaintiff must allege facts

sufficient to show a violation of some underlying law.”).

We do not consider Grant’s claim under California’s Homeowner’s Bill of

Rights because Grant failed to replead it in her operative complaint. See Lacey v.

Maricopa County, 693 F.3d 896, 925 (9th Cir. 2012) (claims dismissed with leave

to amend are waived if not repled).

We do not consider matters not specifically and distinctly raised and argued

3 17-56907 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).

AFFIRMED.

4 17-56907