Julio Mayen v. New Penn Financial, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 27, 2024
• Docket: 19-55996
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JULIO MAYEN, No. 19-55996

Plaintiff-Appellant, D.C. No. 3:17-cv-00050-JLS-MDD

v. MEMORANDUM* NEW PENN FINANCIAL, LLC, DBA Shellpoint Mortgage Servicing,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding

Submitted February 21, 2024**

Before: FERNANDEZ, NGUYEN, and OWENS, Circuit Judges.

Julio Mayen appeals pro se from the district court’s judgment dismissing his

action alleging claims under the Fair Debt Collection Practices Act (“FDCPA”)

and state law. We have jurisdiction under 28 U.S.C. § 1291. We review for an

abuse of discretion the district court’s application of judicial estoppel. Ah Quin v.

* 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). County of Kaui Dep’t of Transp., 733 F.3d 267, 270 (9th Cir. 2013). We affirm.

The district court did not err in dismissing Mayen’s action on the basis of

judicial estoppel because Mayen was aware of, but failed to disclose, the existence

of his claims in his bankruptcy proceedings. See Hamilton v. State Farm Fire &

Cas. Co., 270 F.3d 778, 783-84 (9th Cir. 2001) (explaining that “a party is

judicially estopped from asserting a cause of action not raised in a reorganization

plan or otherwise mentioned in the debtor’s schedules or disclosure statements”

and the bankruptcy court need not actually discharge the debts for judicial estoppel

to apply).

The district court did not abuse its discretion by denying further leave to

amend because amendment would have been futile. See Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of

review and explaining that leave to amend may be denied when amendment would

be futile); Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th

Cir. 2008) (explaining that “the district court’s discretion to deny leave to amend is

particularly broad where plaintiff has previously amended the complaint” (citation

and internal quotation marks omitted)).

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

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).

2 19-55996 We do not consider documents and facts not presented to the district

court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

All pending requests are denied.

AFFIRMED.

3 19-55996