Michael Bondi v. Nationstar Mortgage, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 24, 2018
• Docket: 17-15564
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 24 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL BONDI, No. 17-15564

Plaintiff-Appellant, D.C. No. 2:14-cv-01215-LDG-GWF v.

NATIONSTAR MORTGAGE LLC; MEMORANDUM* BANK OF AMERICA, N.A.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding

Argued and Submitted October 10, 2018 San Francisco, California

Before: D.W. NELSON, W. FLETCHER, and BYBEE, Circuit Judges.

Plaintiff Michael Bondi appeals the district court’s grant of summary

judgment in favor of Defendants Nationstar Mortgage LLC (“Nationstar”) and

Bank of America, N.A. (“BANA”) on Bondi’s claims that Nationstar and BANA

violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review the district court’s grant of summary judgment de novo. Gorman

v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1153 (9th Cir. 2009). Viewing the

evidence in the light most favorable to the non-moving party, we must determine

whether there are any genuine disputes of material fact and whether there is

sufficient evidence favoring the non-moving party such that a jury could return a

verdict in its favor. Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1184–85

(9th Cir. 2016). Evidence that is “merely colorable” will not overcome summary

judgment, nor will evidence that is “based solely on speculation.” LVRC Holdings

LLC v. Brekka, 581 F.3d 1127, 1136–37 (9th Cir. 2009) (citation and internal

quotation marks omitted). “We will not reverse a district court’s grant of summary

judgment” if the non-moving party failed to “identif[y] the evidence establishing a

genuine issue of material fact in its opposition to summary judgment.” Id. at 1137.

1. The district court concluded that Bondi’s FCRA claim against

Nationstar failed because he did not offer any evidence showing that Nationstar

received notice of a dispute from a consumer credit reporting agency (“CRA”).

Under the FCRA, a furnisher’s statutory obligations are triggered “only after the

furnisher receives notice of a dispute from a CRA; notice of a dispute received

2 directly from the consumer” is insufficient. Gorman, 584 F.3d at 1154 (discussing

15 U.S.C. § 1681s-2(b)(1)); see Drew v. Equifax Info. Servs., LLC, 690 F.3d 1100,

1106 (9th Cir. 2012).

On appeal, Bondi cites only his direct correspondence with Nationstar,

arguing that he “made numerous phone calls and wrote numerous letters to

Nationstar” protesting its credit reporting. But his direct correspondence with

Nationstar is irrelevant; Bondi does not identify any notice of a dispute that

Nationstar received from a CRA, and he certainly did not identify any such notice

in the district court. See, e.g., Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1058

(9th Cir. 2009) (“The ‘party opposing summary judgment must direct the court’s

attention to specific, triable facts,’ and the reviewing court is ‘not required to comb

through the record to find some reason to deny a motion for summary judgment.’”

(citations and internal alterations omitted)).

Even assuming Nationstar had received notice of a dispute, Bondi does not

articulate how Nationstar violated the FCRA. Upon receiving notice of a dispute

from a CRA, a furnisher is required under the FCRA to conduct a reasonable

investigation and correct any errors it finds. 15 U.S.C. § 1681s-2(b)(1); Gorman,

584 F.3d at 1156–57. Bondi has produced no evidence showing that Nationstar

failed in this regard; instead, he points to Nationstar’s refusal to believe his

3 assertion that his loan had been forgiven. Nothing in the FCRA obliged Nationstar

to accept this assertion as true and resolve the dispute in his favor. Cf. Gorman,

584 F.3d at 1161 (“An investigation is not necessarily unreasonable because it

results in a substantive conclusion unfavorable to the consumer, even if that

conclusion turns out to be inaccurate.”).

2. The district court concluded that Bondi’s FCRA claim against BANA

was raised for the first time in his opposition to summary judgment and therefore

amounted to “an untimely effort to amend his pleadings.” Bondi does not address

the district court’s ruling on appeal. He has thus waived his challenge to it. See

United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005); Paladin Assocs., Inc.

v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003). In any event, Bondi has

not shown that BANA received notice of a dispute from a CRA within the FCRA’s

limitations period. See Gorman, 584 F.3d at 1154. Bondi’s only evidence is a

report sent by BANA to a CRA, which is not evidence that BANA received notice

from a CRA as the statute requires.

3. The district court concluded that Bondi’s FDCPA claim against

Nationstar is time-barred under the FDCPA’s one-year statute of limitations, 15

U.S.C. § 1692k(d). We have held that the FDCPA’s limitations period is subject to

the “discovery rule” and thus does not begin to run until the plaintiff knows or

4 “‘reasonably could have become aware of’” the “alleged violation.” Lyons v.

Michael & Assocs., 824 F.3d 1169, 1171 (9th Cir. 2016) (quoting Tourgeman v.

Collins Fin. Servs., Inc., 755 F.3d 1109, 1118 n.5 (9th Cir. 2014)); see Mangum v.

Action Collection Serv., Inc., 575 F.3d 935, 940–41 (9th Cir. 2009).

Bondi’s only argument on appeal is that the limitations period in this case

did not begin to run until he knew of the amount of “damages” that had accrued

from the alleged violation. But the limitations period is triggered by the plaintiff’s

knowledge of the alleged violation, not damages. See Lyons, 824 F.3d at 1171

(looking to the plaintiff’s knowledge of the allegedly “wrongful filing of a debt

collection action”); Tourgeman, 755 F.3d at 1118 n.5 (looking to the plaintiff’s

knowledge “of the allegedly false and misleading representations” (citation

omitted)); Mangum, 575 F.3d at 941 (looking to the plaintiff’s knowledge “that her

checks had been disclosed” in an allegedly improper manner). Bondi does not

contest that he knew of the alleged violation when it occurred.

Bondi’s theory fails in any event because he sought statutory damages under

15 U.S.C. § 1692k(a)(2)(A). Those damages accrued and were presumably known

at the moment of Nationstar’s alleged violation, irrespective of any additional

damages that might have later accrued. See TRW Inc. v. Andrews, 534 U.S. 19, 35

(2001).

5 4. The district court concluded that Bondi’s FDCPA claim against

BANA failed because BANA is not a “debt collector” subject to the FDCPA.

Bondi does not object to this ruling on appeal and has thus waived any challenge to

it. See Ramirez v. City of Buena Park, 560 F.3d 1012, 1025 (9th Cir. 2009).

* * *

The judgment of the district court is AFFIRMED. Bondi’s motion for fees

and costs (Dkt. No. 30) is DENIED.