Jon Warwick v. Bank of New York Mellon

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 3, 2019
• Docket: 16-55869
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 3 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JON W WARWICK; JEANNETTE No. 16-55869 WARWICK, D.C. No. 2:15-cv-03343-SS Plaintiffs-Appellants,

v. MEMORANDUM*

BANK OF NEW YORK MELLON, as Trustee for the Certificate Holders of the CWABS, Inc., Asset-Backed Certificates, Series 2005-15 formerly known as The Bank of New York Mellon; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Suzanne H. Segal, Magistrate Judge, Presiding

Submitted May 2, 2019**

Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

Jon W. and Jeannette Warwick appeal pro se the district court’s summary

judgment in their action under the Fair Debt Collection Practices Act (“FDCPA”),

* 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). 15 U.S.C. § 1692 et seq.; the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.

§ 1681 et seq.; the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq.; and

California law, seeking quiet title, damages, and rescission of a mortgage. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Riggs v. Prober &

Raphael, 681 F.3d 1097, 1102 (9th Cir. 2012). We affirm.

The district court properly granted summary judgment on the quiet title

claim because the Warwicks admit that they signed the promissory note and deed

of trust and that they did not repay the loan. See Shimpones v. Stickney, 28 P.2d

673, 678 (Cal. 1934) (“It is settled in California that a mortgagor cannot quiet his

title against the mortgagee without paying the debt secured.”).

The district court properly granted summary judgment on the FDCPA claim

and the claim under the Rosenthal Fair Debt Collection Practices Act

(“RFDCPA”), Cal. Civ. Code § 1788 et seq., because the Warwicks failed to

provide evidence that BANA or Green Tree engaged in conduct prohibited by

either Act. See Riggs, 681 F.3d at 1099-1100 (describing the prohibitions of the

FDCPA and the RFDCPA). Moreover, BANA is not a “debt collector” for

purposes of liability under the FDCPA. See De Dios v. Int’l Realty & Invs., 641

F.3d 1071, 1073, 1075 n.3 (9th Cir. 2011) (explaining that liability under the

FDCPA requires that defendant be a “debt collector” and that a “debt collector

does not include those mortgage service companies and others who service

2 outstanding debts for others, so long as the debts were not in default when taken

for servicing” (citation and internal quotation marks omitted)).

The district court properly granted summary judgment on the FCRA claim

because the Warwicks failed to provide evidence that they complied with the

mandatory notice provisions for a private right of action under the FCRA. See

Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir. 2009)

(explaining the requirements of the limited private right of action under the

FCRA).

The district court properly granted summary judgment on the TILA claim

because the Warwicks failed to rescind their loan within three business days of its

consummation, or to file a claim for damages within one year of any alleged

violation. See 15 U.S.C. § 1635(a) (borrower may rescind a loan within three

business days of consummation of the transaction or delivery of the required forms

and disclosures); id. § 1640(e) (borrower generally must bring an action for

damages within one year of any alleged violation).

AFFIRMED.